Trott v. Wheaton , 5 R.I. 353 ( 1858 )

Ames, C. J.

There is nothing in the will to warrant the tíotion of the executors, that the provision fot the plaintiff did not commence until ten years after the death óf the testator. It would be preposterous to suppose it, when this legacy, in the nature of an annuity, was given, as the will recites, with the view of rendering “ some aid and comfort” to the plaintiff, “in her decline of years; ” the chance being that ten years would outlast her. The will, speaking from the death of the testator, (Houghton v. Franklin, 1 Sim. & Stu. 392,) directs the executors and trustees to pay over to the plaintiff “ the dividends, interest, oiPincome” of the investment, “ semi-annually, during her natural life.” These words, in conformity too with the spirit and purpose of the bequest, require that the payment should commence at the expiration of a half year from the death of the testator; and the cases of Gibson v. Bott, 7 Ves. 96, 97, and Eyre v. Golding, 5 Binney, 474, 475, distinguishing between the gift of the principal sum for life, without more, and a direction like this to trustees, to pay to one, annually or semi-annually, for life, the interest or income of that sum, as well as the above case of Houghton v. Franklin, support us in this construction.

The defendants, as executors, were not suable indeed, under our statute, until the expiration of a year from the probate of the will. This time is given for the convenience of settling the estate; but has nothing to do with the time of payment directed by the will, or from which interest, in such case, is recoverable, when the year has expired and the executors are subject to suit. As the plaintiff was entitled to her semi-annual income at the end of six months from the death of the testator, and it has been detained from her, she must have interest, commencing at that time on the sum thus detained, and so on each sum in arrear, from the time that it fell due.

Let judgment be entered for the plaintiff for the sum of $-, according to the agreement.

After the judgment was entered up, it was discovered, that by an error in calculation, it was not entered up for the amount due to the plaintiff upon the principles of decision announced by the court, into the sum of fifteen dollars.

Tillinghast then moved the judges in vacation, under the power reserved, to amend the judgment by adding thereto the amount requisite to make it conform to their decision; and due notice having been given of the motion,

The Judges ordered the judgment to be amended in accordance with the motion, as within, and incident to, the power reserved to them by the agreement, — to enter up judgment in vacation, as of the last term.