Daniels v. Benton

62 N.E. 960, 180 Mass. 559, 1902 Mass. LEXIS 1140

Opinion

Loring, J.

The plaintiff was a legatee under the will of John C. Paige; the testator died on May 8, 1897. The plaintiff’s residence was out of the Commonwealth and was not known to the executors; and they made no effort to ascertain where she was or to pay her her legacy.. On May 18, 1899, the plaintiff demanded her legacy and it was paid to her ; she also demanded interest from May 8,1898, that is to say, from the expiration of a year after the death of the testator. This was refused and this action was brought to recover it. At the hearing without a jury the defendants asked for two rulings, one that on the evidence the plaintiff was not entitled to recover, and the other that interest does not begin to run unless a demand has been made for the payment of the legacy.

In support of their first contention, the defendants rely on the • fact that the residue is given for the support of the testator’s mother and that income is to be paid on that trust fund from the death of the testator. This does not negative the payment of interest on this pecuniary legacy which was not paid by the end of the year for the convenience of the estate or through the neglect of the executors.

Ogden v. Pattee, 149 Mass. 82, disposes of the defendants’ second contention.

The question of the rate of interest argued by the defendants was not raised at the trial and is not open to them; there is nothing in it. Welch v. Adams, 152 Mass. 74.

Exceptions overruled.