Pickering v. Pickering

6 N.H. 120

• Court: Superior Court of New Hampshire
• Decided: March 15, 1833
• Status: Published

Opinion

By the court.

It is contended, in this case, that no action can be maintained, for a legacy, without showing an express promise, on the part of the executor, to pay.

In England, where a legacy is not specific, but merely a gift out of the general assets, a court of common law will not entertain jurisdiction to compel payment of it, even though the executor admit the legacy to be due, and that he has assets, upon the ground that a court of common law is, from its rules, incompetent to administer that complete justice to the parties, which courts of equity have the power, and are in the constant habit of doing. 5 D. & E. 690, Decks v. Strutt; 5 Vesey, 516; Peake’s N. P. C. 73, Farish v. Wilson.

But, even in England and New York, an action at common law may be maintained, for a legacy, where there has been a special promise to pay. Cowper, 289, Hawkes v. Saunders; Ventris, 120, Davis v. Wright; Cowper, 284, Atkins v. Hill; 1 Niel Gow, 74, Gorton v. Dyson; 7 Johns. 99; 10 ditto, 30; 3 Car. and Payne, 205, Gregory v. Harman; 4 Espin. N. P. C. 154, Doe v. Grey; 3 East, 120, S. C.

In this state, and in Massachusetts, there never has been any way in which the payment of a legacy could be enforced, except by a suit at the common law. And in this state, by a provincial act of the 13th Anne, it was enacted, that legacies might be recovered at the common Jaw. Such actions have always been sustained here without any proof of a special promise. 2 N. H. Rep. 439, Piper v. Piper; 4 Mass. Rep. 634, Farwell v. Jacobs.

And we are of opinion, that it is in no case necessary to show a special promise in order to maintain an action for a legacy.

It is further contended, on behalf of this defendant, that the action cannot be maintained without showing a demand of the legacy, and a neglect, or refusal, of the devisee to pay.

In general, no action can be maintained for a legacy, against an executor, without showing a demand. 3 Pick. 218; 14, Mass. Rep. 431.

The reason of this is, that it is not the duty of the executor to seek the legatee, but it is enough if he pay when the legatee comes and demands payment.

The question is, whether, in this respect, a devisee, in a case like this, stands on any other ground than that on which an executor stands r We are of opinion that he docs stand on different ground. When he accepts the land he becomes a debtor, by reason of the land, for the legacy, and, like any other debtor, is bound to pay without a demand. He stands on the same ground as if be had expressly promised to pay.

It is said, on behalf of the defendant, that the declarations of his wife were improperly admitted in evidence against him. But it seems to us that it must be presumed, until the contrary appear, that the wife conducted and managed the household affairs as the agent of her husband, and that, whatever the plaintiff did, was done under the direction of the wife, thus acting as agent. Her declarations, then, in relation to matters done under her directions while acting as the agent of her husband, are clearly admissible in evidence against him. 2 Starkie’s Ev. 46, and 57. 1 Bing. 199, Clifford v. Burton; 10 Johns. 38, Fenner v. Lewis; 1 Espin. N. P. C. 142, Emerson v. Blonden; 1 Holt’s N. P. C. 591, Anderson v. Sanderson; 2 Starkie’s N. P. C. 204, S. C.

Judgment on the verdict.