In re the Judicial Accounting of McGowan — 36 N.Y. St. Rep. 686

Majority

p. 686

In the Matter of the Judicial Accounting of Hannah McGowan, Executrix of John F. Wallace, Dec’d.^[1]

(Court of Appeals, Second Division,

Filed April 7, 1891.)

Headnote

1. Will—Legacy—Interest.

Interest on a general pecuniary legacy begins to run one year after the grant of letters testamentary or of administration.

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2. Same.

The words “ granting letters testamentary or of administration,” as used in the statute includes letters of temporary administration.

Appeal from a judgment of the general term of the supreme •court in the first judicial department, reversing a decree of the surrogate’s court of the county of Mew York as to the claim of one William Carroll, and also from the whole of such judgment.

John F. Wallace died July 23, 1885, leaving a last will and testament. Objections to the probate of the will were filed, and thereafter and on March 3, 1886, letters of temporary administration were granted upon the estate of said deceased. The will was admitted to probate on the 29th day of June, 1887, and on that day letters testamentary were duly issued. By the will a legacy of $20,000 was given to the appellant. The executrix offered to pay the amount of the legacy with interest from the date of issue of letter's testamentary. The legatee insisted that he was entitled to interest after the expiration of one year from the date of death of testator. He finally received from the executrix the amount of the legacy less the collateral inheritance tax, with interest from the date of granting letters testamentary, under a stipulation which provided that: “ The above check is received by me without prejudice to my claim that I am entitled to interest from one year from the death of the testator, or for any further or other period and that I am not liable to pay the collateral inheritance tax. If the court decides in my favor on such or either of said claims, I am to receive such claims.”

Malcolm Campbell, for app’lt; Charles H. Woodbury, for resp’t.

Two questions are presented by this appeal:

1. Whether interest on a general pecuniary legacy begins to run one year after the testator’s death or one year after the grant of letters testamentary or of administration?

2. If one year after grant of letters, does the time begin to run from the date of granting letters of temporary administration pending probate proceedings ?

The statute provides that “ no legacies shall be paid by any executor or administrator until after the expiration of one year from the time of granting letters testamentary or of administration, unless the same are by the will to be sooner paid.” 2 B. S., marg. p. 90, chap. 6, title 3, art. 2, § 43. Prior to such enactment, interest on legacies of the character therein referred to was payable one year after the death of the testator, the exception to the rule being founded generally on facts which the courts have deemed equivalent to a direction in the will to pay interest from the date of testator’s death.

Whether the effect of the statute was to change the time when legacies commence to draw interest from one year after the death of a testator to one year after the granting of letters has not been presented to this court in such manner as to require its determination, so far as we have observed, in but one case. In Kerr v. Dougherty, 17 Hun, 341 , the general term held that such was the

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effect of the statute and accordingly modified the judgment, which embraced interest computed from one year after the death of testator. In the opinion of this court that proposition was not discussed, but the judgment as modified was affirmed, so that the question was necessarily considered and passed upon. 79 N. Y., 327 . While it is probably true, as appellant insists, that in no other case has this court been required to pass on the question, still the effect of the statute in that respect has been commented on so frequently as to leave no room to doubt the view of the court, though Kerr v. Doughterty were not controlling. Bradner v. Faulkner, 12 N. Y., 472 ; Cooke v. Meeker, 36 id., 15-23; Thorn v. Garner, 113 id., 198-202; 22 N. Y. State Rep., 692; Van Rensselaer v. Van Rensselaer, 113 N. Y., 207 —215; 22 N. Y. State Rep., 947. In surrogate’s court, a' number of decisions may be found adhering to the former rule, notwithstanding the cases above cited. Carr v. Bennett, 3 Dem., 459 ; Dustan v. Carter, id., 149; Clark v. Butler, 4 id., 378; Matter of Gibson, 24 Abb. N. C., 45 ; 27 N. Y. State Rep., 762.

The refusal of the surrogate’s court to accept the views of this court as expressed in the cases cited is founded on the claim that they are obiter. We shall, therefore, briefly allude to the reason which has led to the determination that the effect of the statute was to do away with the rule allowing interest on general legacies at the expiration of one year from the death of a testator. As that rule was not created by legislative enactment, we must ascertain the principle which led to its adoption. Originally it was assumed that the assent of the executor to the legacy was essential before the title of the legatee became complete, for without such assent the legatee had no authority to take possession of his legacy. The ecclesiastical court at an early period determined that a year from a testator’s death the executor should render an account of the performance of the whole will, Swinburne on Wills, part 6, § 19, and consequently that was the time when the executor should assent, or be presumed to assent, to the payment of legacies. The legacies then being due and payable at the end of a year, if payment was longer withheld the legatee was held to be entitled to interest thereafter, and for the same reason that interest is payable on all other demands after the principal becomes due. So a legacy made payable at a given, time by the terms of a will on the same principle is held to bear interest from the date when payment is directed to be made.

While it is true that many authorities may be found both in England and this country which declare that interest is payable on general legacies one year after the death of a testator, the basis of the decisions rests in the fact that at such time the principal becomes payable to the legatee.

So when the legislature declared by statute that no legacy shall be paid until after the expiration of one year from the time of granting letters unless the will direct otherwise, the principle upon which the former rule was founded required the courts of this state to hold that interest was not payable until one year after the issue of letters, for not until then was the legatee entitled

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to the principal. The general rule, then, from early times has been, and still is, that interest begins to run from the time when a legacy is payable. They were at one time payable a year after the death of testator. But in this state the legislature has postponed the time of payment until one year after the grant of letters. And the application of the principle which the courts have long enforced to this changed situation produces necessarily a different result. One which the law-making power, however, must be deemed to have contemplated.

The second question, whether the words “granting letters testamentary or of administration,” as used in the statute, includes letters of temporary administration, we think should be answered in the affirmative.

First. Because the legislature having used the words “ letters of administration ” instead of letters “ of administration with the will annexed,” must be deemed to have employed them in their broader meaning, so as to include letters of temporary administration as well.

Second. The inducing cause for the enactment does not militate against such construction.

Prior to the passage of chapter 456 of the Laws of 1890, the persons to whom letters were granted were required to wait six months before advertising for claims, and after that time they were directed to advertise for the presentation of demands by creditors for a period of six months. Necessarily, therefore, a year would elapse before it could be definitely ascertained whether after the payment of debts and funeral expenses, there would remain of the testator’s estate an amount sufficient to pay legacies. Hence, the statute forbidding their payment until such time.

When, as in this case, delay in the probate of a will is occasioned by a contest, letters of temporary administration may issue. Code Oiv. Proc., § 2668. The temporary administrator has authority to take into his possession personal property, to secure and preserve it, collect choses in action, and maintain actions therefor. Code, § 2672. He may publish the usual notice to creditors requiring them to exhibit their demands to him, and such publication has the same effect as to him, and also as to the executor or administrator subsequently appointed, “ as if the temporary administrator was the executor or an administrator in chief, ana the person to whom the subsequent letters are issued was his successor.” Section 2673.

After a year has elapsed, the surrogate may, on the application of a temporary administrator, or on petition of a creditor, in a proper case, make an order permitting the payment of the whole or. any part of a debt Section 2674.

When the appointment of a temporary administrator is occasioned by the absence from the state of an executor named in the will, the surrogate may direct him to make payment of a legacy or other pecuniary provision under a will, as though he were executor or administrator. Section 2672.

The statutory provisions referred to make it apparent that the"

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temporary administrator is invested with the authority and the-, duty to take ail the steps which an executor can take for the purpose of ascertaining the condition of the estate at the expiration of a year from a grant of letters. There was no occasion, therefore, for the legislature to provide that the time occupied by the temporary administrator should not be included in the year which must elapse between the issue of letters and the time when legacies are payable, and we do not think that the language employed, should receive such a construction.

Letters of temporary administration were granted March 3,1886, and, therefore, the legatee became entitled to interest from March 3, 1887. Interest was only allowed him from June 29, 1888.

The judgment of the supreme court and decree of the surrogate should be reversed, and the proceedings remitted for rehearing by the surrogate, with costs payable out of the estate.

All concur.