Taylor v. Taylor

Morton, C. J.

The question whether the executors have the right to charge interest, after the death of the testator, upon the debts due by his brothers and sisters, depends upon the intention of the testator, to be gathered from his will. Bacon v. Gassett, 13 Allen, 334 . Cummings v. Bramhall, 120 Mass. 552 .

The will gives legacies to several persons; directs that the executors “ shall lay aside a fund of twenty-five thousand dollars,” of which his widow is to have the income during her life ; and devises and bequeaths the rest and residue of the estate to his brothers and sisters who may be living at the decease of the testator, to be divided equally between them.

It then provides that, “ in case any of the legatees are indebted to me at the time of my decease, such indebtedness shall be deducted from the legacy given him or her, and the balance only paid over to such legatee, and if such indebtedness exceeds the legacy given them, I hereby discharge and release the surplus of such indebtedness.”

The amounts due by the brothers and sisters at his death cannpt, in strictness, be regarded as advancements; but it is clear that the testator did not intend that they should be treated as debts capable of being collected. At his death they ceased to be debts to be collected, and became amounts which were to be included in making up the residue to be divided, and then to be deducted from the separate shares of the legatees. The language first used implies that the debts to be deducted are to be taken as they exist at the death of the testator: “ In case any of the legatees are indebted to me at the time of my decease, such indebtedness shall be deducted.” “ Such indebtedness” means the amount due at the decease of the testator. We think that the intention of the testator was that these debts should cease to be debts, and become at his decease in the nature of advancements. They therefore become substantially advancements,- not by force of the statute nor by reason of the original character of the debts, but because they are made so by the will of the testator.

It follows that the executors are not entitled, in making up the residue, to charge, against the brothers and sisters of the testator who were indebted to him at the time of his decease, interest after his decease. Decree affirmed.