Spencer

We are of opinion that the executors of the will of the late Tabitha G. Spencer are exempt from suits for legacies for five years after their appointment. The testatrix by her codicil confirms their appointment, and declares it to be her will that "they shall have five years in which to settle my estate." The legatees, taking under the will, can only take according to its terms, and are therefore not entitled to enforce their legacies during the five years allowed for the settlement. It is urged that though the five years are allowed, it was not intended that they should be used without necessity. This may be so, but in our opinion the language in which they are allowed is such that the executors may use the entire period or not, according to their discretion. It is also urged that if the executors cannot be sued for five years, they cannot be sued at all at law, since after the five years the action at law given by statute will be barred by the three years limitation in favor of executors and administrators. But admitting this, the remedy in equity and the remedy on the bond still remain. It follows that the first question, and the second also, in so far as it applies to the legacies, must be answered in the affirmative. Of course the clause allowing five years for settlement cannot prejudice the rights of creditors, for they are entitled not simply under the will, but independently of it.

We are of opinion that the clause in the codicil, viz., "Should my estate diminish in value, then my legacies shall decrease in proportion," means that, if the estate diminishes in value between the making of the will and the payment of the legacies, the resulting loss shall not fall wholly upon the residuary legatees, but all the legacies shall decrease proportionately, and we answer the third question accordingly.

We are of opinion that the pecuniary legacy to Stephen A. Budlong was not due and payable on May 12, 1887. The will gives him a thousand dollars if he survives the probate of it, but the codicil modifies the bequest by declaring that if he dies before payment, then the sum given shall form a part of the residuary estate. We think this provision of the codicil makes his right to the legacy contingent upon his surviving until payment, if the legacies are paid within five years; though after the five years his right will in our opinion become absolute, since any delay of payment after that time will be the fault of the executors and they cannot take advantage of it. We think he will not be entitled to interest so long as his right remains contingent. This answers the fourth question, and also virtually the fifth, for Susan Claflin having died within the five years and before payment, the amount of her legacy, in accordance with the opinion, falls into the residuum.

We are of opinion that the pecuniary legatees are entitled to interest on their legacies after a year from the death of the testatrix, when they are subject to no contingency and no time for payment is specified. This is the general rule, and should be followed in the absence of any clear indication of an intent that it should not be followed. We do not think the clause allowing the executors five years within which to settle the estate is such an indication. It is permissive, not mandatory. It declares that the executors shall have, not that they shall take, five years. It seems to us that the reasonable construction is that it was designed, not to benefit the residuary at the expense of the pecuniary legatees, but to enable the executors to take their time for the period allowed, in case the regular course of settlement would prove disadvantageous. And see Varley v.Winn, 2 Kay J. 700; Wood v. Penoyre, 13 Ves. Jun. 325. Interest is not allowed after a year because the executor is necessarily obliged to pay at the end of the year, for the will may not have been proved then, or, if proved, it may not be possible to know whether the assets will suffice to pay both debts and legacies. Pearson v. Pearson, 1 Sch. Lef. 10;Martin v. Martin, 6 Watts, 67. The ordinary practice is to wait until the claims against the estate have been settled, and a clear fund ascertained, before enforcing the payment of particular legacies. Thomas v. Montgomery, 1 Russ. M. 729, 737. In Kent v. Dunham, 106 Mass. 586, 591, the court says that interest is allowed on the principle that it follows as an accretion to the principal legacy, and does not depend on demand or default.

The sixth and seventh questions are in effect answered by this opinion taken in connection with the opinion given in answer to the first and second questions.

Decree accordingly.