Hamilton v. McQuillan

Foster, J.

Action of debt for a legacy, against the defendants as administrators de bonis non with the will annexed. That the estate of the testator is solvent is admitted, as also the receipt of $308 by the executor from an insurance policy belonging to the estate of the testator, and a demand for payment of the same upon these defendants.

The only question for determination is whether it is competent for a solvent testator, having a wife but no children, to dispose by will of insurance money, coming to his estate at his decease, to a person other than his wife, his intention so to do being clearly and definitely expressed in the will.

This precise question has never before been presented to or decided by this court.

The only cases where any reference to this question has been raised are those of Hathaway v. Sherman, 61 Maine, 466, and Blouin v. Phaneuf, 81 Maine, 176; but in neither of which was it decided.

*207 The former was a case where the testator died insolvent, and the court there decided that the insolvent could make no testamentary disposition of 'the fund accruing from an insurance policy upon his life where he left neither widow nor child, the insurance money in that event being assets for the payment of debts; and in the event of his leaving a widow and children, that it was competent for him to bequeath the insurance money among them in such proportion as he might see fit, but he could not bestow it by will upon other persons.

The latter case was where the estate of the testator was solvent, but the court found no occasion to decide this precise question, inasmuch as in that case there was no such well declared intention thus to dispose of it as the law requires, — and in both it was held that the testator’s intention thus to dispose of it must he explicitly declared, and could not be inferred from general provisions in the will, the fulfilment of which might require the use of such money.

In the present case, however, no difficulty is encountered in reference to the intention of the testator as to the disposition he intended to make of the money accruing from insurance upon his life, for, after a bequest to his wife of one half his personal estate “with the exception of what may be collected from policies of life insurance,” by the fifth item of his will he makes a specific bequest of the same in this language: “Fifth: I give and devise all my interest in any and all life insurance policies to Warren Hamilton, of Sabattus, in the state of Maine.”

That it was the intention of the testator to change the direction which the law would otherwise give to this species of property in accordance with § 10, c. 75, R. S., there can be no doubt.

Will the law uphold such a testamentary disposition of this money thus accruing, or must the statute to which we have referred be considered as limiting the power of the testator over it on account of his leaving a widow or issue ?

We have no doubt upon this question as now presented. It was competent for the testator to make such disposition of the fund as he chose inasmuch as his estate was solvent, notwithstanding he left a widow.

*208 There is a general power given by statute to persons of sound mind, twenty-one years of age, to dispose of their real and personal estate by will, when not necessary for the payment of debts. R. S., c. 74, §§ 1, 7.

The limitation of such testamentary disposition to the widow or issue, as provided in § 10, c. 75, R. S., in respect to funds accruing from insurance on the life of the testator, applies only in eases where the estate is insolvent. When the estate is solvent, and the testator leaves a widow or issue, or both, he has the same power of disposition by will over such funds as he has over any other personal property belonging to his estate. But the intention of the testator to bequeath the same to others, including his widow or issue, must be explicitly declared by the terms of the will, otherwise it will not pass by the will, but will descend in accordance with § 10, c. 75, to which we have referred. Blouin v. Phaneuf, 81 Maine, 180.

The various provisions of statute bearing upon this question were so fully considered and discussed in the case of Hathaway v. Sherman that any further reference to them in this connection becomes unnecessary. In that case the subject for consideration related to an insolvent estate, yet anticipating that the question now before the court might sometime arise, and as foreshadowing the result, to which, in such event, the court would probably arrive, Babbows, J., in the course of the opinion saw fit to make use of this language: “If it be held that under the general statute authorizing the disposition of property by will a solvent testator, or one whose estate would be solvent with the addition of the fund thus created, may authorize his executor to use this fund for the payment of his debts, and otherwise dispose of it in a manner different from that which the law contemplates or will allow in the case of an insolvent estate, we think, in order to effect his object, the testator must use language directly significant of his intention in this respect; that, classed by the legislature as tins fund is, it is not to be approjn'iated to the payment of debts or of any pecuniary legacies couched in general terms merely, even to the widows or children, unless it .is expressly referred to as the fund from which payment is to be made, and *209 that it does not pass by any general residuary clause ; in short, that the testator’s intention to change the direction which the law gives to this very peculiar species of property, is not to be inferred from general provisions in his will the fulfilment of which might require the use of such money, but must be explicitly declared.”

The plaintiff, as legatee, is entitled to maintain this action against the defendants to recover the amount which is admitted to have come into their hands from the policies under the specific bequest thereof in the will of the testator. R. S., c. 65, § 31. Smith v. Lambert, 30 Maine, 137, 143; Holt v. Libby, 80 Maine, 329; Harlow v. Dehon, 111 Mass. 195, 199 ; Allen v. Edwards, 136 Mass. 138, 142 .

The plaintiff is also entitled to interest upon this legacy from such time as. either by the will or by the rules of law, it became due, and ought to have been paid. No time of payment was designated by the will. The statute is silent upon the question as to when pecuniary legacies shall be paid. Inasmuch as the case as presented calls for a decision upon the matter of interest on this legacy, and as interest is to be allowed from the time it became payable, it may be stated as a general rule, subject of course to some exceptions, that pecuniary legacies are payable in one year after the death of the testator when no time of payment is specified in the will, and there are assets belonging to the estate subject to such legacies. This will be found to be settled by numerous decisions, both ancient and modern, and the rule that prevails generally. Smith v. Lambert, 30 Maine, 140 ; Kent v. Dunham, 106 Mass. 586 ; Brooks v. Lynde, 7 Allen, 64 , 67 ; Rotch v. Emerson, 105 Mass. 434 -5; Loring v. Woodward, 41 N. H. 391; Rice v. Boston Port and, Seaman’s Aid Society, 56 N. H. 191; Smell v. Dee, 2 Salt. 415; Marsh, v. Hague, 1 Edw. Ch. 174 ; Sullivan v. Winthrop, 1 Sum. 1 ; Bradner v. Faulkner, 12 N. Y. 472 ; 2 Win. Exrs. 1124* and cases there cited; 3 Redf. on Wills, 312 ; *2 Redf. on Wills, 466* and numerous cases cited. By all the authorities it is laid down that interest is allowed as incident to the legacy after it becomes due, and not as a charge upon the executor personally on the ground of neglect or delay in its pay *210 ment; nor is any demand necessary for payment in order to entitle the legatee to interest. And the general rule may thus be given,— that a pecuniary legacy, payable generally, without designation as to time of payment, is payable at the end of one year from the death of the testator without interest; and that if not then paid, it bears interest after the expiration of the year. In support of this rule the foregoing authorities may be noted, and many others referred to therein which it is unnecessary to cite.

In this case it appears that the testator died December 31, 1885. An executor was appointed and the money received by him from the insurance company within a few months after the testator’s decease.

Judgment for plaintiff for $308, and interest thereonfrom Dee. 31, 1886.

Peters, C. J., Walton, Virgin, Emery and Haskell, JJ., concurred.