Hoffmeister v. Amberg

160 N.W. 177, 164 Wis. 387, 1916 Wisc. LEXIS 82

• Court: Wisconsin Supreme Court
• Decided: December 5, 1916
• Status: Published

Opinion

Eschweilee, J.

The substantial question presented on this appeal is whether this bequest shall draw interest from the period of one year after the death of the testator, as claimed by Mrs. Amberg, or from the time at which the administrator could have been required by law to pay this legacy after the actual probating of the will, as claimed by appellants.

The appellants contend that this is a general legacy and does not take effect until after the will is probated, and then cannot be referred back as to the time of the death of the testator, and that the claimant Eliza Amberg, by joining in the agreement of the heirs to delay the probate of the father’s estate until the death of the widow, waived any rights she might have had for interest during such delay. And further, that this bequest of $200 became the personal obligation of the sisters taking the homestead and that therefore the county court had no jurisdiction; and lastly, that if it became such personal obligation the statute of limitations had run against it.

As to the latter propositions they are disposed of by the rules that in order to take advantage of the bar of the statute of limitations such bar must be specially pleaded (Roach v. Sanborn. L. Co. 135 Wis. 354, 359, 115 N. W. 1102), and that questions not brought up in the court below cannot be entertained bere (Birdsall v. Fraenzel, 154 Wis. 48, 53, 142 N. W. 274).

When the deceásed said in his codicil that he wished his other heirs shall pay to Eliza Amberg, “after my death,” the sum of $200, it must be construed to mean that the payment was intended by him to become due and payable at such time as is ordinarily the period after death that the law provides for such payment in the ordinary course of administration, namely, one year after such death.

Construing this codicil in the light of the situation disclosed here, namely, that the testator changed the interest of his daughter Eliza in the estate from an equal share with the sisters in the homestead to this legacy of $200, and that the sisters had the use and enjoyment of the homestead from immediately after testator’s death to the present time, and thereby the use, so to speak, of the $200' remaining unpaid to Eliza, there is nothing to indicate an intention by testator to postpone Eliza’s interest in the estate beyond the time when the sisters took their interest. These appellants taking the homestead fixed their own time for immediate enjoyment by their own acts and ought not now complain of being required to place Eliza in as nearly the same position as themselves as is now possible.

The delay in admitting the will to probate is immaterial; it may be admitted at any time after the death of the testator (Hanley v. Kraftczyk, 119 Wis. 352, 96 N. W. 820), and the delay is attributable as much to the appellants as to the respondent.

The general rule is that such legacy becomes due and payable at the end of the year following the death of the testator, which is the time generally limited for the payment of debts and legacies. Evans v. Foster, 80 Wis. 509, 515, 50 N. W. 410; Matter of Frankenheimer, 195 N. Y. 346, 353, 88 N. E. 374; Kingsbury v. Bazeley, 75 N. H. 13, 70 Atl. 916.

Such legatee is in the same position as a creditor and entitled to be awarded interest at tbe legal rate for snob time as be is kept out of bis payment. Matter of Rutherfurd, 196 N. Y. 311, 315, 89 N. E. 820.

Interest does not depend upon demand or default (Ogden v. Pattee, 149 Mass. 82, 84, 21 N. E. 227; Daniels v. Benton, 180 Mass. 559, 62 N. E. 960); and even if tbe delay is caused by tbe legatee contesting tbe will, it does not affect tbe paying of interest as of one year from tbe death of the testator. Claflin v. Holmes, 202 Mass. 157, 159, 88 N. E. 664.

Tbe appellants cannot now be beard for tbe first time to challenge tbe jurisdiction of tbe county court, and whatever delay there may have been in tbe probate of tbe will it was by virtue of tbe agreement between tbe heirs and ought not to be taken advantage of by any of tbe parties to tbe agreement. Tbe circuit court was therefore right in its conclusions.

By the Court. — Judgment of tbe circuit court affirmed.