Lincoln v. Wood

Soule, J.

We see no ground on which the trustees are entitled to interest on the sum of thirty thousand dollars from the date of the decree ratifying the compromise to the time when that sum was paid to them.

The decree, by force of the statute, is binding and valid on all parties claiming either under the will or as heirs or next of kin. St. 1864, e. 173. But it is binding and is intended mainly for the purpose of determining the rights of the parties to particular or proportionate parts of the estate, as against each other, and does not, in the absence of any stipulation to that effect in ths agreement, fix the right to immediate payment. It has tho character of a judgment so far as regards proportionate parts oi the estate, and precedence among the parties, but not as to the absolute right to receive anything. Because, as is provided by § 4 of the statute, the claims of creditors against the estate of the deceased are not impaired by the proceedings. The effect of the decree in the case at bar was in substance to substitute for the will of the testator an agreement for the distribution of *206 the estate, after payment of the debts and of the counsel fees named, in certain proportions between the trustees thereafter to be appointed under the will and the next of kin of the testator. It left the estate to be settled by the administrators with the will annexed, in the ordinary way. They were entitled to a reasonable time in which to ascertain the condition of the estate, and to pay the debts, before being obliged to pay anything under the agreement to the trustees or the next of kin.

Whether the amount to be paid to the trustees is regarded as a legacy or a sum payable under a contract, no interest was due on it when it was paid. The amount to be paid was not fixed till November 1874, the administrators with the will annexed were ap pointed in March 1875, the trustees were appointed in April 1875, and the payment was made to them in the following July. It is not contended that interest was payable as on a legacy, after the expiration of a year from the death of the testator, probably because it seemed unreasonable to insist that an amount agreed on by way of compromise at a much later date should stand in the same position with a legacy actually given by the will, especially when the allowance of interest as on a legacy would have the effect to change materially the proportionate division of the estate from what is evidently intended by the language of the agreement of compromise. If the sum to be paid to the trustees could be regarded as a legacy, it must be treated as if the death of'the testator occurred when the decree ratifying the compromise was made, in which event the trustees would not be entitled to interest because the legacy was paid within a year. If the sum is to be regarded as due under a contract, it was not payable by the terms of the contract at a specified time, and was therefore payable in a reasonable time, and was manifestly so paid.

If it be contended that the administrators after the decree held the sum of thirty thousand dollars as trustees for the charity, and are under the obligation to pay interest, because the fund was drawing interest, the answer is, that neither the special administrators nor the administrators with the will annexed were trustees under the will, neither set the sum of thirty thousand dollars apart for the charity, the whole fund in their hands was of the estate of the testator, and they could not without special authority from the proper tribunal, nor by any mere mental *207 determination, so separate a part from the rest that it should cease to be a portion of the estate; and, not being trustees under the will, they could not open an account with themselves as trustees, and so separate and set up a fund for the charity, to be paid with its accumulation to the trustees when they should be appointed. Miller v. Congdon, 14 Gray, 114 . Nothing in the facts indicates any purpose or attempt to separate and hold a specific fund for the charity.

We are of opinion, therefore, that the heirs at law and next of kin of the testator are entitled to the whole fund in the hands of the plaintiffs, it being less than the sum of twenty-five thousand dollars, after payment of such sum as costs out of the fund as shall be ordered by a single judge. Decree accordingly.