Harvey v. Clarke

Temple, J. The question involved in this appeal is whether appellant, Mrs. Harvey, is entitled to interest upon a legacy of $10,000 given her by the will of the deceased.

Williams died May 6, 1891. By his will as first executed he gave in trust for his adopted daughter, Mrs. Auzerais, and her children, $100,000; to Hannah B. Fuller, $10,000; Sophia G. Cutter, $10,000; Mrs. Clinton Hardy, $10,000; Mary Green, $10,000; for a monument, $1,000'; Lodge of Masons, $1,000, and to Mrs. Auzerais. the residue of the estate.

The will contained the following provision: “ My said executors shall not be required to pay the legacies herein to said Fuller, Hardy, and Green until such time as it may be practicable to do so, having regard to beneficial management of my said estate. The said bequest of $100,000 to my said daughter Lucy is not to be reduced or diminished under any circumstances,” etc.

By a codicil the testator gave additional legacies, as follows: To Sarah W. Woart, $20,000 from the residue of his estate; to Hannah B. Fuller, $10,000 additional; to Sophia G. Cutter, $10,000 additional; to Mrs. J. Downey Harvey, $10,000 out of the residue of the estate; to Harriet E. Mowe, $5,000; to Gee Foo, $500; to Charlie, $500, and to Sophia G. Cutter, $2,500 for a monument.

The will was probated May 29,1891. The estate was appraised at $314,645.11. The time for presentation of [524]claims against the estate expired March 29, 1892. The claims presented aggregated $1,579.55, and were all paid prior to May 6, 1892.

It is provided by section 1368 of the Civil Code that . legacies are due and deliverable at the expiration of one year after the testator’s decease, by section 1369 that they bear interest from the time they are due and payable, and by section 1370 that these provisions are in all'cases to be controlled by the testator’s express intentions.

The judgment of the probate court refusing interest is defended on various grounds.

1. It is contended that the above direction that the executors need not pay certain named legatees their legacies until it is practicable, having regard to the beneficial management of his estate, is an express declaration that the legacies were not due and payable until the executors shall deem, or the court shall find, that such payment is practicable, having regard to the beneficial management of the estate.