Felton v. Sawyer , 41 N.H. 202 ( 1860 )

Bellows, J.

The declaration states that Samuel S. Metcalf, by his will, September 22, 1849, gave all his estate, after paying his debts and funeral charges, to Jonathan S. Sawyer, in trust for Metcalf’s daughter, Rachel, a minor, to be managed, disposed of, and paid over to her as follows: To be invested as the trustee should deem most for Rachel’s interest, and to pay over for or to her, from time to time, until twenty-one years of age, such sums of money, not exceeding six per cent, as he should think fit, and after that to pay her part or all of the estate, as he should see fit, provided not over one third, with its income and increase, should be paid over before she was twenty-five years old, nor more than two thirds when she should attain the age of thirty years; but the whole was to be paid by the time she was thirty-five years old ; and appointed Sawyer executor, who proved the will October 16, 1849; that Metcalf having died September 22, 1849, leaving personal estate but no real estate, Sawyer accepted the trust of executor, and gave bond, and took possession of the estate, being much more than sufficient to pay debts and expenses, assented to the bequest to him in trust for said Rachel, but gave no bond as trustee, and no other trustee was appointed during his life time; that said Sawyer, May 3, 1852, made his will, and gave parts of his estate to sundry persons and the residue to Jonathan N. Sawyer, the defendant, and appointed him his sole executor, and died March 1, 1858, leaving a large amount of property over debts and expenses; that his will was proved, and the defendant accepted the trust and gave bond as residuary legatee; that he took possession of the estate, and has ever since acted as administrator; that Jonathan S. Sawyer, in his life time, settled his account of the administration of Samuel S. Metcalf, having paid the debts and funeral charges, and there was found in his hands, after paying the expenses, ¡¡¡>1,841.41, to be disposed of under said Metcalf’s will, and held in trust for said Each el, which fund be managed and made payments out of the same, to and for said Rachel, as directed by the will; that be did not invest the money, but kept it in bis control, and at bis decease there remained of it $1,100; that Rachel married Alonzo D. Perrin, October 4, 1852, and died January 9, 1858, of the age of twenty-four years, and the plaintiff was appointed her administrator, and demanded payment of said $1,100 and interest.

The defendant pleads, in abatement, substantially that the action is misconceived and premature; to which the plaintiff demurs.

. Prom this statement it is quite clear that the whole property was given to the daughter, though with the intervention of a trustee ; and the terms, which look to the future, apply to the time and mode of payment, and not to the gift itself; and there is nothing in the will that indicates an intention to postpone the vesting of the legacy. The whole estate is, in fact, given to her, and no other means provided for her support, she being then about fifteen years old, and the income of the fund not likely to exceed materially the amount required for her maintenance and education. Upon .her reaching the age of thirty-five years the whole fund, including the interest, would go to her, and it is clear, upon the adjudged cases, we think, that, upon her death before that age, the whole would go to her personal representative, to be paid immediately, without waiting for the time when she would have reached the age of thirty-five years. Had the will given her nothing but the principal, leaving it in the hands of the executor or trustee in such way as to give the estate or other parties the benefit of the income, the rule would have been otherwise. But it is clear, in this case, that she would take both principal and interest, and therefore, on her death, though before thirty-five, the whole would go at once to her representatives.

In Crichett v. Dolbey, 3 Vesey 13, where the legacy was to bo paid at the age of twenty-one, with interest, the Master of the Nolls says, “ there never could be such an absurdity as the notion that you must wait till the legatee would have been twenty-one, and then have the subject, with interest.” And this, we think, accords with the general current of the authorities upon this subject. Hanson v. Graham, 6 Ves. 239, and notes; Haywood v. Whitby, 1 Burr. 228; Boraston’s Case, 3 Co. 19; Butler v. Forman, 3 Atk. 58; Toller’s Law of Executors, (3d Ed.) 171, 313, 325; Hoath v. Hoath, 2 Bro. Ch. 3, and notes; Walcott v. Hall, 2 Bro. Ch. 305; 1 Jarm. on Wills 759, 760.

Upon these views, the administrator of Kachel Met-calf) at her death, became entitled to the whole fund, both principal and interest, to be paid without awaiting the time when she would have reached the age of thirty-five years, had she lived. Jonathan S. Sawyer, the executor of Samuel S. Metcalf, was living at the death of Eachel; but, never having given the bond required by law of a trustee, he must be regarded as having declined the trust. Comp. Stat., ch. 178, sec. 3. The money was then in his hands as executor, and the plaintiff) upon demand, the executor having assented to the legacy, could have maintained an action at law against him to recover it. Eor aught we can see it would then stand upon the ordinary footing of a pecuniary legacy, for which, as is well settled in this State, an action at law will lie.

The question, then, is, will this action lie against the present defendant ? He, as the executor of Jonathan S. Sawyer, has taken the whole estate of his testator, including the fund bequeathed to Bachel, which seems not to have been kept distinct from the other estate of Jonathan S. Sawyer. The estate of the latter is large, and, for aught that appears, is administered as a solvent estate. If so, at the expiration of one year from the grant of administration, and after exhibiting the claim and making demand of payment, an action at law could be maintained by tbis plaintiff against the defendant, to recover the amount of the legacy in his hands, with interest; and we think that the action may well take the form of debt for money had and received. TJpon these views our conclusion is that the action is not misconceived, nor is it, upon any thing stated in the plea, to be regarded as prematurely brought. Should it turn out that it was brought before the expiration of one year from the granting of administration to the defendant, it would probably come within the provisions of the statute upon that subject. But as that question is not raised by the pleadings, and we are not furnished with the writ, it is unnecessary to consider it further.

"We have not considered the question whether the form of the declaration is precisely adapted to the case upon the views we have stated, and it may be necessary to amend by stating some further facts, to entitle the plaintiff to maintain the suit against the administrator. But these questions do not arise here, the plea going to the action of the writ, and not having the chai’acter of a special demurrer.

The demurrer to the plea must, therefore, be sustained, but giving to the defendant the right to withdraw the plea, without terms, and plead anew, and also giving to the plaintiff leave to amend, without terms, his declaration.