Andrews v. Hunneman

23 Mass. 126

• Court: Massachusetts Supreme Judicial Court
• Decided: March 29, 1828
• Status: Published

Opinion

The opinion of the Court was delivered by

Parker C. J.

It seems to be well settled in the law, that in a specific devise of chattels, though the right vests at the death of the testator, yet the assent of the executor is necessary to enable the legatee to obtain possession.¹ At the common law, and this founded upon the liability of the executor for debts, he has a right to refuse the legacy until he has ascertained whether there are assets.

It is therefore held to be necessary to go into chancery to obtain payment of a legacy, where there will be an account and discovery of assets, and a decree of payment if those be found sufficient. Now, at the common law, an action lies for a legacy on a promise to pay, there being a sufficiency of assets. Cowp. 288.² And trover will lie for a specific legacy after an assent of the executor. 3 Atk. 223. An assent will be presumptive evidence of assets. By our statute of 1783, c. 24, § 17, [Revised Stat. c. 66, § 16,] an action a law is given for a legacy. But this action will not lie immediately on the death of the testator, because it may not be known whether there are assets sufficient for the debts, unless there is an assent ; and by parity of reason, a legatee will have no right to take the thing devised out of the hands of the executor, until the latter has had time to know the condition of the estate. But if the thing devised is in the legatee’s possession at the death of the testator, then an acquiescence in such possession is sufficient to vest the property in the legatee, if there are assets, and a formal consent cannot be necessary ; so that if he sells or disposes of the thing devised, the purchaser will hold, under such circumstances.³

Now in the case before us, the tools given by the will were in the possession of the vendor, who was the legatee, before and at the death of the testator ; so that a delivery to him by the executrix was not necessary. Nothing more than her acquiescence in the continuance of the possession by him was requisite. He claimed them as his own, and had offered to sell them, and this was known to the family generally, including the executrix. She never interfered, but on the contrary, having been told by counsel that her consent would vest the property, if she did not take an accountable receipt, she suffered them to remain without taking such receipt or asking for one. There was nothing to encounter this evidence but loose conversations by which the defendant was not bound, and the demand of payment for the articles for the executrix, and his promise to pay. But he had received a bill of parcels in the name of George Andrews alone, having purchased of him without any intimation of his selling as an agent for the executrix. This promise to pay is wholly immaterial to the ques tian of the right of George to sell, in any other view than as il might show that the defendant knew the sale was made for the executrix, which was not suggested to be .the case. We think a new trial ought to be granted, on the ground that the verdict is strongly against the weight of evidence.¹

With respect to two or three of the articles made while George Andrews was working with his father, they would seem not to be comprehended within the words of the bequest, for that refers only to the tools which had by George been conveyed to the father ; and for these we do not see but the plaintiff is entitled to recover.

N'ew trial granted.

1 See Wilson v. Rine, 1 Harr. & Johns. 139; Hairston v. Hall, 3 Call. 188.

2 See Ram on Assets &c. 508 to 512 (No. 23 Law Libr. p. 235 to 238) ; 1 Story’s Comm. Eq. 554.

3 .Where A, the legatee of a term, enters and occupies for a short time and then quits the possession, it is a question for the jury whether the executors have or have not assented to the bequest; and if a party contracted with A for an underlease, it may be left to the jury to say whether the contract was made with A in his own right or as agent to the executor. Richardson v. Gifford, 3 Nev. & Man. 335; S. C. 1 Adolph. & Ellis, 53. See also 3 Roberts on Wills, 107 to 109; 3 Williams on Executors, 843 etseq.

1 A verdict will not be set aside as contrary to evidence, unless there is a decided preponderance against the verdict. Smith v. Hicks, 5 Wendell, 48; Jackson v. Loomis, 12 Wendell, 27; Rundell v. Butler, 10 Wendell, 120; Lewis v. Payn, 4 Wendell, 423; Fowler v. Ætna Ins. Co. 7 Wendell, 270; Johnson v. Scribner, 6 Connect. R. 185; Cassels v. State, 4 Yerger, 149 Williams v. Gilman, 3 Greenl. 276