The opinion of the court was delivered by
Powebs, J.
Legacies in this State, unless otherwise controlled by the will, draw interest after one year from the probate of the will. Bradford Academy v. Grover, 55 Vt. 462.
And this rule is not affected by the circumstance that the executor is unable to gather in the assets and so provide himself with funds to pay the legacy within the year. Marsh v. Hague, 1 Edw. Chan. 174.
The important contention between the parties arises upon the payment made by the defendant of the sum of $2,880 on September 3, 1884, which, he insists, amounted under the circumstances to an accord and satisfaction. The plaintiff claims that there remained-due a large balance of interest upon its legacy, and that the sum of $320 deducted by the defendant for legal expenses was wrongful and should be allowed plaintiff in this accounting.
Soon after the death of the testatrix a litigation sprang up which threatened, if successful, to defeat not only the [101]*101residuary legacies, but largely to diminish the specific legacies under the will.
The executor thereupon made an agreement with two of the charitable legatees to share in the expense of that litigation, and wrote Mr. Davis, the plaintiff’s treasurer, February 25, 1884, a letter, notifying him of the litigation and informing him that “pro rata assessments, covering costs, will be made on all concerned.” The result of the litigation was favorable to the estate, and the other two charitable societies paid their. share of the legal expenses, and waived all claim for interest on their legacies pending the litigation.
August 16, 1884, the executor notified Mr. Davis that the litigation was ended, and enclosed a statement of the standing of the plaintiff’s legacy, as claimed by the executor, which showed due the plaintiff $2,880, after deducting assessment for legal expenses and allowing no interest pending litigation; and also sending blank draft for said sum, which Mr. Davis was requested to sign, which the executor' promised to honor on presentation, and also, a receipt in full which he requested Mr. Davis to sign and return.
In response to this letter Mr. Davis wrote, August 19,1884, saying: “ I think the practice of Probate Courts in Vermont is to allow interest on legacies after one year from the time will is probated. I suppose there will have to be an accounting for interest. I will receipt to you any amount you may send me to account for on settlement. ”
August 20, 1884, the executor replied in a letter, rebuking the claim for interest and reminding Mr. Davis that two of the sisters of Mrs. Leach were entirely without means — one a confirmed invalid — and suggesting that the residue going to them ought not to be drawn upon to pay an interest charge.
No reply to this letter was made by Mr. Davis.
August 26, 1884, the executor again wrote Davis, saying: “ Immediately upon the termination of litigation involving one half the estate of Mrs. Leach, I deposited balance due [102]*102your society, less pro rata assessment for defending suits, in bank here, requesting you to draw for the amount, viz.: $2,880,” and adding' “the funds are not drawing-interest.”
On receiving this pointed and specific notification, Mr. Davis consulted legal counsel relative to the matter, and on September 3, 1884, wrote the executor as follows:
“Cavendish, Vt., September 3, 1884.
“C. B. Orcutt, Esq., Agt.,
150 Broadway, N. Y.,
“ Dear Sir: I have this day drawn on you through Baxter National Bank, Rutland, for $2,880.
“Yours truly, Geo. E. Davis,
“ Treasurer.”
And on the same day he made the following draft:
“$2,880. Cavendish, Vt., September 3, 1884.
“At sight, after date, pay to the order of Geo. R. Bottuin, cashier Baxter Nat. Bank, Twenty-eight hundred and eighty dollars, value received, and charge to account of
“George E. Davis,
“ Treas. Vt. Baptist State Con.
“To C. B. Orcutt, Agént.
Jambs S. Ladd, Executor,
“Mrs. R. B. Leach’s will, 150 Broadway, New York.”
This draft was deposited by Davis in the Baxter National Bank for collection, and collected in due course and the proceeds placed to the credit of Mr. Davis.-
September 4, 1884, the executor replied to the above letter of September 3, as follows:
“150 Broadway, N. Y., September 4, 1884. “Geo. F. Davis,
Treasurer Vt. Baptist State Convention.
“Dear Sir: Yours of the 3d inst. advising that you had drawn on me for $2,880 duly received. I have paid the [103]*103draft, which is in full for all claims against the estate of Priscilla B. Leach, being balance due on legacy to your convention, as per statement rendered August 16, 1884, and subsequent advice of August 26.
“Yery truly, C. B. Orcutt.
“ For J. S. Ladd, executor.”
Mr. Davis held the money received upon his draft some three weeks, and duly informed the directors of the convention that he held it; aiid the convention has since retained it. The receipt of this money was duly reported to the convention at its next annual meeting by the treasurer, and his report was accepted without question in this behalf.
October 6, 1884, Mr. Davis wrote to the executor, saying in substance, he never had any authority to settle this matter for less than the amount legally due, and never intended to do so, and claiming the full amount of the legacy with interest.
We are all agreed that this legacy was paid in full when Mr. Davis drew for the $2,880, and applied.the proceeds to the use of the plaintiff.
The correspondence above set out shows clearly an attempt by the executor to pay the $2,880, in full extinguishment of the plaintiff’s claim. It was offered as and for a full payment, and when accepted it was taken as offered in full. In this holding we do not'question the general rule prevalent in this State and. elsewhere, that payment of a sum less than the one due is no accord and satisfaction of the larger sum, because the facts do not bring the case within the range of that rule.
That rule applies only when the claim is liquidated, or is dependent upon a mere arithmetical computation. McDaniels v. Lapham, 21 Vt. 222.
Here it is true the claim, as the plaintiff now makes it, could be easily computed, and so from its stand-point was liquidated within the rule. But the defendant re[104]*104pudiated this claim, and did not pay in recognition of it. He made the payment upon the express condition that it should be in full for the balance due on the plaintiff’s legacy. The plaintiff took the money and converted it to its own use, without even a protest against the defendant’s condition that it was in full. It is now too late to repudiate that condition. If the plaintiff did not intend to accept the condition, it should have refused the money. It cannot accept the one and reject the other. A payment must be retained if accepted upon the terms annexed to it by the payer. Solutio accipitur in moclum solveniis.
In McGlynn v. Billings, 16 Vt.
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The opinion of the court was delivered by
Powebs, J.
Legacies in this State, unless otherwise controlled by the will, draw interest after one year from the probate of the will. Bradford Academy v. Grover, 55 Vt. 462.
And this rule is not affected by the circumstance that the executor is unable to gather in the assets and so provide himself with funds to pay the legacy within the year. Marsh v. Hague, 1 Edw. Chan. 174.
The important contention between the parties arises upon the payment made by the defendant of the sum of $2,880 on September 3, 1884, which, he insists, amounted under the circumstances to an accord and satisfaction. The plaintiff claims that there remained-due a large balance of interest upon its legacy, and that the sum of $320 deducted by the defendant for legal expenses was wrongful and should be allowed plaintiff in this accounting.
Soon after the death of the testatrix a litigation sprang up which threatened, if successful, to defeat not only the [101]*101residuary legacies, but largely to diminish the specific legacies under the will.
The executor thereupon made an agreement with two of the charitable legatees to share in the expense of that litigation, and wrote Mr. Davis, the plaintiff’s treasurer, February 25, 1884, a letter, notifying him of the litigation and informing him that “pro rata assessments, covering costs, will be made on all concerned.” The result of the litigation was favorable to the estate, and the other two charitable societies paid their. share of the legal expenses, and waived all claim for interest on their legacies pending the litigation.
August 16, 1884, the executor notified Mr. Davis that the litigation was ended, and enclosed a statement of the standing of the plaintiff’s legacy, as claimed by the executor, which showed due the plaintiff $2,880, after deducting assessment for legal expenses and allowing no interest pending litigation; and also sending blank draft for said sum, which Mr. Davis was requested to sign, which the executor' promised to honor on presentation, and also, a receipt in full which he requested Mr. Davis to sign and return.
In response to this letter Mr. Davis wrote, August 19,1884, saying: “ I think the practice of Probate Courts in Vermont is to allow interest on legacies after one year from the time will is probated. I suppose there will have to be an accounting for interest. I will receipt to you any amount you may send me to account for on settlement. ”
August 20, 1884, the executor replied in a letter, rebuking the claim for interest and reminding Mr. Davis that two of the sisters of Mrs. Leach were entirely without means — one a confirmed invalid — and suggesting that the residue going to them ought not to be drawn upon to pay an interest charge.
No reply to this letter was made by Mr. Davis.
August 26, 1884, the executor again wrote Davis, saying: “ Immediately upon the termination of litigation involving one half the estate of Mrs. Leach, I deposited balance due [102]*102your society, less pro rata assessment for defending suits, in bank here, requesting you to draw for the amount, viz.: $2,880,” and adding' “the funds are not drawing-interest.”
On receiving this pointed and specific notification, Mr. Davis consulted legal counsel relative to the matter, and on September 3, 1884, wrote the executor as follows:
“Cavendish, Vt., September 3, 1884.
“C. B. Orcutt, Esq., Agt.,
150 Broadway, N. Y.,
“ Dear Sir: I have this day drawn on you through Baxter National Bank, Rutland, for $2,880.
“Yours truly, Geo. E. Davis,
“ Treasurer.”
And on the same day he made the following draft:
“$2,880. Cavendish, Vt., September 3, 1884.
“At sight, after date, pay to the order of Geo. R. Bottuin, cashier Baxter Nat. Bank, Twenty-eight hundred and eighty dollars, value received, and charge to account of
“George E. Davis,
“ Treas. Vt. Baptist State Con.
“To C. B. Orcutt, Agént.
Jambs S. Ladd, Executor,
“Mrs. R. B. Leach’s will, 150 Broadway, New York.”
This draft was deposited by Davis in the Baxter National Bank for collection, and collected in due course and the proceeds placed to the credit of Mr. Davis.-
September 4, 1884, the executor replied to the above letter of September 3, as follows:
“150 Broadway, N. Y., September 4, 1884. “Geo. F. Davis,
Treasurer Vt. Baptist State Convention.
“Dear Sir: Yours of the 3d inst. advising that you had drawn on me for $2,880 duly received. I have paid the [103]*103draft, which is in full for all claims against the estate of Priscilla B. Leach, being balance due on legacy to your convention, as per statement rendered August 16, 1884, and subsequent advice of August 26.
“Yery truly, C. B. Orcutt.
“ For J. S. Ladd, executor.”
Mr. Davis held the money received upon his draft some three weeks, and duly informed the directors of the convention that he held it; aiid the convention has since retained it. The receipt of this money was duly reported to the convention at its next annual meeting by the treasurer, and his report was accepted without question in this behalf.
October 6, 1884, Mr. Davis wrote to the executor, saying in substance, he never had any authority to settle this matter for less than the amount legally due, and never intended to do so, and claiming the full amount of the legacy with interest.
We are all agreed that this legacy was paid in full when Mr. Davis drew for the $2,880, and applied.the proceeds to the use of the plaintiff.
The correspondence above set out shows clearly an attempt by the executor to pay the $2,880, in full extinguishment of the plaintiff’s claim. It was offered as and for a full payment, and when accepted it was taken as offered in full. In this holding we do not'question the general rule prevalent in this State and. elsewhere, that payment of a sum less than the one due is no accord and satisfaction of the larger sum, because the facts do not bring the case within the range of that rule.
That rule applies only when the claim is liquidated, or is dependent upon a mere arithmetical computation. McDaniels v. Lapham, 21 Vt. 222.
Here it is true the claim, as the plaintiff now makes it, could be easily computed, and so from its stand-point was liquidated within the rule. But the defendant re[104]*104pudiated this claim, and did not pay in recognition of it. He made the payment upon the express condition that it should be in full for the balance due on the plaintiff’s legacy. The plaintiff took the money and converted it to its own use, without even a protest against the defendant’s condition that it was in full. It is now too late to repudiate that condition. If the plaintiff did not intend to accept the condition, it should have refused the money. It cannot accept the one and reject the other. A payment must be retained if accepted upon the terms annexed to it by the payer. Solutio accipitur in moclum solveniis.
In McGlynn v. Billings, 16 Vt. 329, it was held, that when a debtor offers his creditor a certain sum as the balance due him on book, and upon his refusal by the creditor, deposits it with a third person for the creditor if he will accept it in full, and the creditor subsequently receives it from such third person, declaring at the time that he will not accept it in full, such acceptance of the money discharges the creditor’s whole account.
In Cole v. Champlain Transportation Co. 26 Vt. 87, McDaniels v. Lapham, 21 Vt. 222, and McDaniels v. Bank of Rutland, 29 Vt. 230, the same doctrine was announced.
The defendant’s letters of August 16th and 20th contained a clear notification to the plaintiff’s treasurer of the terms upon which he could draw the $2,880, which the defendant claimed was the balance due, and the treasurer accepted the money without even a protest, as in McGlynn v. Billings, that he repudiated the condition. He must have understood that the defendant was paying in full. This is sufficient to bring the case within the authorities cited.
But if there be any doubt on this point the defendant’s letter of September 4th, received while the money was in the treasurer’s hands, renewed the condition upon which he was to hold it. He then was in condition to restore the money to the defendant, but after notifying his associates [105]*105on the board of direction — and we must assume that he probably was less reticent in his dealings with them than he thus far had been with the defendant — he elects to retain the money, and the convention itself is now holding the funds.
It is not claimed in the brief of the plaintiff that Mr. Davis acted without proper authority in the matter, of receiving this money. He was the fiscal agent of the convention, and the convention was fully informed of the claim of the executor respecting the amount of the balance due when the §2,880 were paid. In the report of the managers to the convention, dated September 24, 1884, they say: “ In regard to the Leach legacy, a further payment of $2,880 was made to the treasurer the 4th inst. The balance of $320 is withheld by the executor of the will, on the claim that it is the part of costs necessarily incurred in defending the estate,' which the convention should pay. It should be noted that hereafter the Baptist church in Middletown is entitled annually to an order of fifty dollars from the income of this legacy.”
This report was accepted and adopted by the convention.
The treasurer, at the same session of the convention, reported the Leach legacy at the sum of $7,680, as part of the permanent fund of the convention, this being precisely the amount stated by the executor in his letter of August 16th, and this report of the treasurer covers the balance due, less interest and pro rata share of costs.
There can be, therefore, no room for doubt, that even if Mr. Davis had acted without due authority in accepting the payment of $2,880, as the true balance due on this legacy, his principal has ratified the payment with full knowledge of the executor’s claim.
The executor is not chargeable with interest on the legacy, nor with the $320 withheld for legal expenses.
The judgment of the County Court is reversed, and judg[106]*106ment that all the claims made by .the plaintiff in the agreed statement be disallowed, and ordered that this judgment be certified to the Probate Court.