Brooks v. Lynde

Dewey, J.

The legacy to William B. Bigelow was a vested legacy, and an action to recover it may therefore be maintained in the name of his administrator, if neither of the other objections taken by the defendant is valid. These relate to the time of commencing the action.

Is this right of action lost by delay in bringing the same 1 Clearly not by the general statutes limiting the period for bringing actions, as legacies are not within them, they being held to partake so far of the nature of a trust, or demand of an equitable character, as not to be embraced therein. Bac. Ab. Legacy K. Parker v. Ash, 1 Vern. 256.

• Legacies are not within the provisions of Gen. Sts. c. 97, limiting actions against executors and administrators, not being of the class of demands therein described, and for the stronger rea son that, for the purpose, as it would seem, of excluding any possible construction to the contrary, it is directly enacted in e. 97, § 22, that “ nothing contained in this chapter shall bar a» action brought at any time against an executor or administrator with the will annexed, for the recovery of any legacy.”

*67 The further inquiry is, whether the present action was prematurely brought. It appears that the will was proved more than twenty years ago, and, the executors having deceased, the present defendant was appointed administrator with the will annexed in April 1861. This action was instituted May 24th 1.862, being shortly after the expiration of one year from the appointment of the present administrator. It is urged on the part of the defendant that the administrator is not liable to any suit before the expiration of two years. As already stated, the limitation as to suits against executors does not apply in terms to suits for legacies. It is somewhat remarkable that no provision is made fixing any period after the appointment of an executor, or administrator with the will annexed, within which a legatee may not bring his action.

Although this is so, yet it has been generally assumed that no action would lie until after the expiration of one year. By the civil law, executors have the period of one year from the death of the testator to pay legacies, and the same period in conformity therewith has been adopted by the courts of chancery. Bac. Ab. Legacy, K. Smell v. Dee, 2 Salk. 415. In Marsh v. Hague, 1 Edw. Ch. 174 , it is said that, as a general rule, legacies are payable in one year. This is also in analogy to the statute provision, Gen. Sts. c. 97, § 16, prohibiting actions by creditors of the estate against executors and administrators, until the expiration of one year from their appointment. It also harmonizes with Gen. Sts. c. 98, § 9, requiring every, executor within one year to render his first account of administration. It was said by this court in Andrews v. Hunneman, 6 Pick. 129 , that an-action will not lie immediately upon the death of a testator for a legacy, because it may not be known whether there are assets sufficient for payment of the debts. But no suggestion was made that a delay of two years is necessary.

The provisions of Gen. Sts. c. 97, § 21, strongly indicate that the legatee may enforce his claim for a legacy before the expiration of the two years allowed to creditors to present their claims. This section provides that where an executor, within two years after having given bond for the discharge of his trust, *68 is required by a legatee to make payment of his legacy, the probate court may require that the legatee shall first give bond to indemnify the executor against all loss and damage on account of such payment. This provision enables an executor to secure himself against loss by payment of legacies before the debts are barred, and while the amount of assets is uncertain.

Under other systems, the payment of the legacy can only be enforced in equity, where the rights and interests of all parties may be fully guarded. ' But with us, where by statute a legacy may be recovered by an action at law, it will be seen that it will always be in the power of the court to interpose until indemnity is furnished under the above provisions of the statute. The action cannot be commenced until after a demand of payment of the legacy, thus giving notice to the executor that the case has occurred in which he may apply to the court of probate for an order for indemnity. The action for a legacy is of course based upon the allegation of the reception of assets by the executor, making him liable therefor.

Without expressing any opinion further than this case requires, the court are satisfied that this action was not prematurely brought. The case as stated finds that all the debts of the testator have long since been paid, and that assets remain sufficient, if sold and applied to that purpose, to pay this and all the legacies given by the will, which have not been paid.

The plaintiff is therefore entitled to recover, and the defendant is to be defaulted, and damages to be assessed for the legacy.