
    Gray et al., Executors, v. Case School of Applied Science.
    
      A general legacy — Draws interest from end of first year — From date of appointment of executor.
    
    In this state a general legacy bears interest, at the legal rate, from the end of the first year from the date of the notice of the appointment of the executor, unless it be clearly apparent that the testator did not so intend.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Cuyahoga county.
    This case was tried in the courts below on the amended petition of the plaintiff, the answer to the amended petition and a demurrer to the answer. The demurrer was overruled by tbe court of common pleas and judgment entered for tbe plaintiff in error for tbe amount admitted in the answer to be due. But tbe court refused to render judgment for interest from August 15, 1891, as claimed in tbe petition.
    Tbe defendant prosecuted error to this decision in tbe circuit court of Cuyahoga county, and that court reversed tbe court of common pleas and rendered judgment in favor of tbe defendant in error, for tbe amount of tbe legacy bequeathed to it by tbe will of Laura K. Axtell, with interest for one year from the date of tbe bond of tbe executors.
    It is alleged in tbe amended petition that tbe testatrix died in 1890; that her will was proved August 15, 1890, that the executors qualified on that date, and that the first publication of notice of tbe appointment of tbe executors was on August 20, 1890. By tbe will of tbe testatrix a legacy of $50,000 was given to tbe Case School of Applied Science, and by a codicil an additional legacy of $1,000 for a specific purpose. Payment of $42,587.50 was made on tbe first-named legacy. The executors filed their final account on tbe 8th day of April, 1896, and on August 18, 1896, a general order of distribution was made by which it appears that tbe assets are sufficient to pay all debts, and to settle all tbe bequests with interest as claimed. Tbe amended petition also avers that tbe personal assets from tbe time of tbe death of Sirs. Axtell bad been sufficient to pay all tbe legacies Avith interest, but that they were not collected until November 4,1895,
    The answer to tbe amended petition avers that there Avere sufficient assets in tbe bands of the executors to pay the legacies prior to November 4, 1895, and that the time for settling another estate, tbe Kerr estate, from which assets were to be received by the Axtell estate, bad been extended from time to time, and that it was not settled until November 4, 1895. It also claimed that tbe real estate of Kerr added to the estate of Mrs. Axtell’s assets were at no time sufficient to pay the legacies with interest. The judgment of the court of common pleas was reversed by the circuit court. To reverse the judgment of the circuit court the defendant below filed this petition in error.
    
      F. J. Jerome and Lewis J. Wood, for plaintiffs in error.
    A reading of the very short record in this case shows that the point to be decided is: From what time does a general legacy draw interest?
    Our contention is, and it is alleged in the answer and admitted by the demurrer, that there was not at the end of the year nor at any time prior to November 1, 1895, a sufficient fund on hand for the payment of the general legacies. And our further contention is that no matter what was the amount of the assets, nor what amount of money had been collected from them, the general legacies were not due and payable and did not begin to draw interest until the order of distribution was made on the 18th day of August, 1896. Lease v. Downey, 5 O. C. C. R., 480; 3 Circ. Dec., 235.
    Formerly the ecclesiastical courts and courts of equity had jurisdiction over testamentary and administration matters, and it was under that state of things that the rule was adopted making legacies due and payable one year after the death of the testator, allowing interest upon the same from that time.
    That rule has been adopted in a few of our states; in some of them by statute.
    California, section 1368.
    Pennsylvania — Pepper and Lewis statutes, p. 1507, section 173.
    Under these Pennsylvania statutes it is held, and properly, of course, in the 167 Pa. St., p. 463, that a legacy bears interest from the time it is payable.
    The legislature of Ohio has made provision for enforcing the payment of a legacy; it has provided for fixing the time when a legacy shall be due and payable and may be put in suit and a judgment had for its payment, and by such provisions has fixed the time when the legacy shall begin to draw interest.
    Sections 6195 to 6202, inclusive, were enacted in 1857 — shortly after the supreme court, in the McLaughlin case in 4 Ohio St., 508, held that the powers of the probate court were exhausted when the order of distribution was made, and it had no jurisdiction to entertain a petition to enforce the payment of the amount awarded to the distributee.
    These sections recognize the fact that no tribunal except the probate court can compel an accounting by an executor, or can hear and determine his accounts, and that until such hearing and determination and an order of distribution there is no cause of action for the recovery of the legacy; it is not due and payable and, as we contend, cannot therefore draw interest.
    Section 6195 certainly fixes the time when the right of action of plaintiff in error herein accrued — thirty days after the settlement of the account and an order of distribution made thereon. This suit is based on that statute, as shown by the petition.
    The accruing of a cause of action and the maturing of a claim are one and the same thing. So .we take it that this claim, this legacy, was not mature, it was not due, until a suit could be brought for it, and we learn from the statute quoted that a suit could not be brought till thirty days after the account and order of distribution.
    Not being due before that time it could not draw interest until that time. Interest must either be provided for by contract or by statute. At common law interest was not allowed. 11 Am. and Eng. Enc. of Law, page 379 and cases cited; Sanderson v. Reed, 75 Ill. App., 190.
    Our interest statute provides for the payment of interest on all money when it becomes due and payable on any bond, bill, note, or other instrument of writing. Rev. Stat., 3181.
    Thus it would seem that a legacy, which is money due at some time under a will — a written instrument — should bear interest from the time it becomes due and payable.
    A legatee is not entitled to the payment of his legacy at the end of one year or at any time until there has been an account and order of distribution.
    Our statute so declares and the courts have so construed it. Dawson v. Dawson, 25 Ohio St., 443.
    Section 524 gives to probate courts exclusively jurisdiction over the accounts of guardians as well as of executors and administrators. Newton v. Hammond, 38 Ohio St., 430.
    
      Williamson, Cushing & Clarice, for defendants in error.
    We conceive that the decided and statutory law of Ohio clearly establish the rule of law for this state to be as decided by the circuit court. Webster et al. v. Bible Society, 50 Ohio St., 1.
    Following the statement of the law by this court, the claim of the defendant in error was in the lower court, and the decision of the circuit court sustained the claim, that interest should be allowed upon the legacies claimed from one year from the date of the qualifying of the executors — not from one year from the death of the testator.
    Many statutes of Ohio clearly indicate the intention upon the part of the law making power that estates shall be settled within one year from the qualifying of the representative; — as if to follow the immemorial practice out of which grew the interest rule for which we contend, viz: 'Revised Statutes 6062, 6040, 6074, 6106, 6109.
    Thus does the whole scheme of the statutory settlement of estates in Ohio proceed as if upon a set-tied purpose that settlement shall be concluded within one year from the date of the bond.
    The statutory provisions and decisions from the loAvest courts of record to the highest, Avould seem to settle the rule for this state, that general legacies, such as those claimed by the defendant in error under the Avill of Mrs. Axtell, bear interest from one year from the date of the qualifying of -the executors.
    Such is the law in other states and in England. Rotch v. Emerson, 105 Mass., 431; Davis v. Swan, 4 Mass., 208; Kent v. Dunham, 106 Mass., 586; Martin v. Martin, 6 Watts, 67; Huston App. 9 Watts, 473; Derby v. Derby, 4 R. I., 414; In re Spencer, 16 R. I., 25; Budd v. Garrison, 45 Maryland, 418; Spriggs v. Weedon, 21 Maryland, 156; Halsted v. Mccker, 18 N. J. Equity, 136; Wheeler v. Ruthven, 74 N. Y., 431; Bradmer v. Faulkner, 12 N. Y., 474 ; Cooke v. Meeker, 36 N. Y., 18; Loring v. Woodward, 41 N. H., 391; Chambers v. Chanibers, 87 Ky., 144; Wood v. Penoyre, 13 Vessey, 333; Pearson v. Pearson, 1 Sch. and L., 10.
    This one-year rule is laid down as the general rule, also, by the authoritative text book writers. Williams Executors, 2d Ed., p. 533; Crosswell Executors and Administrators, Sec. 503; Settlement of Decedent’s Estates, Giauque, 155; Williams Executors, Vol. 2, p. 1533; Craigbaum v. Southard, 23 Bull., 438; 10 Dec. Re., 803.
    This rule, which is thus distinctly adopted in nine states, including Ohio, and by all authoritative writers of text books, is bottomed upon three grounds in the books. 1 Sch. and L., 10.
    But the fact and the law is that the question Avhether suit can be brought or not at the expiration of one year from the giving of bond by the executor, has nothing whatever do to with the determining of this rule of interest and so of the decision that should be rendered in this case. The rule to be deduced from the authorities as well as from right reason is, that whether an action may be commenced or not at the expiration of a year from giving of bond, nevertheless interest from the expiration of that year becomes an accretion to the legacy, because in no other way can the intention of the testator be carried out. Kent v. Dunham, 106 Mass., 586; Ogden v. Patten, 149 Mass., 82.
    The common law rule has been made statutory in Pennsylvania, but it was adopted by the courts of that state before the statute was passed. Hustings appeal, 9 Watts, 472.
   Davis, J.

It has heretofore been a rule in Ohio, as elsewhere, that a general legacy shall bear interest at the legal rate from the end of the first year from the testator’s death, unless it shall be apparent that the testator did not so intend. In other words, it is an established rule of construction, in contemplation of which the testator is presumed to have made his bequest, and which will only be overturned when the testator clearly manifests a different intention. In this case, the circuit court, in view of the right of the legatee to require payment of his legacy at any time within four years after the executor or administrator has given bond for discharge of the trust, on first giving an indemnity bond to the executor or administrator (R. S., section 6128), seems to have held that the legatee was entitled to interest from the expiration of one year from the date of the bond of the executors. 15 C. C., 488; 8 Circ. Dec., 241.

The circuit court, however, actually found that the court of common pleas erred in refusing to render judgment for interest from the expiration of one year from the probate of the will.

Revised Statutes, Secs. 6062, 6040, 6106 and 6109, all seem to recognize that an executor should have at least one year in which to collect assets and to ascertain the condition of the estate. So that this ruling of the circuit court, although not exact, was in accord with the principle that “in those states where statutes or the judge of probate allows a year in which to pay debts and legacies, such legacies are not due until the end of a year from granting letters testamentary, and the interest should be computed from that time.” Wheeler v. Hatheway, 54 Mich., 550; Webster et al. v. Bible Society, 50 Ohio St., 17.

The general rule of construction, as thus modified to harmonize with our statutes, is challenged here, by -the plaintiffs in error, on the following grounds: 1. That there was not at the end of the year1, nor at any time prior to November 4, 1895, a sufficient fund on hand for the payment of the general legacies. 2. Regardless of the amount of the assets, or of the amount of money in the hands of the executors, the general legacies were not due and payable, and did not begin to draw interest, until the order of distribution was made on the 18th day of August, 1896. Or, to put the last ground of objection in another form, “a legatee is not entitled to the payment of his legacy at the end of one year, or at any time until there has been an account and order of distribution.”

If the general rule which has been stated above, still prevails, and there were assets sufficient for the payment of the legacy and applicable thereto, although not collected, it avails nothing to say that the condition of the estate was such that payment of the legacy at that time was impracticable, or that the assets were not then convertible; for that would be equivalent to saying that a man should not pay -interest on his debt because he could not pay the principal when it became due. The whole theory of the rule which we have under discussion is, that interest should be allowed from the time when a legacy ought to be paid to the time when it is paid, as a compensation for the delay of payment; and the claim that interest should not be allowed because the executors were not ready to pay the legacy when it ought to have been paid, and when the legatee could have compelled payment, on giving a bond of indemnity, is altogether untenable.

The further contention of the plaintiffs in error that a legatee is not entitled to the payment of his legacy at any time until there has been an accounting and an order of distribution, seems to us to be based on a misconception of the scope and purpose of Revised Statutes, sections 6195-6202. These enactments were designed to confer on the probate court and the court of common pleas the power of enforcing an order of distribution made by the probate court on the settlement of an account by an executor, administrator or guardian. Looking at their history and context, it will appear that they do not in terms, or by construction, exclude the remedy provided for a legatee by Revised Statutes, sections 6128 and 6211. They are merely cumulative to the latter sections. Dawson v. Dawson, 25 Ohio St., 443; Webster v. Bible Society, 50 Ohio St., 17.

It was held by this court in the last cited case that the cause of action on a general legacy accrues when, by the terms of the will or rules of law it becomes due and payable and the executor has sufficient assets in Ms hands applicable thereto. From that time, it wouid seem, interest should run; and, in the absence of direct legislation upon the subject, the general rule should be applied according to the analogies of our statutes. From the general tenor of the statutes we may gather that the executor could not be expected nor required to obtain control of. the assets and to reduce them to money, and to have obtained knowledge of the demands against the estate, in less than one year from the time of giving notice of his appointment. Hence a general legacy would not be both due and payable until after the expiration of one year from the date of notice of the appointment; nor, as it has already been shown, can the time of payment be ordinarily deferred until settlement and distribution of the estate.

It remains that in none of the cited statutory provisions, has the hitherto prevailing rule as to interest on general legacies, been abrogated; nor has it in any manner become the subject of direct legislation. In applying the rule to this case, the circuit court, attempting to conform it to the analogies of the Ohio statute, held that “the court of common pleas erred in * * refusing to render judgment for interest upon the unpaid portions of the bequest mentioned in the said amended petition, from the expiration of one year from the date of the probate of the willbut inasmuch as the probate of the will,- the appointment of the executors and their qualification, were all on the same day, and the first publication of the notice of appointment was only five days later, we find no substantial error in the judgment of the circuit court, De minimis non curat lex. The judgment is

Affirmed.  