Wilcox v. McCarthy

The petitioner, who was entitled to a legacy of six thousand dollars under the will of the deceased, received that sum in two payments, for the last of which-she gave a receipt “ in full of the legacy.” There was at that time due to her frohi the estate the sum of $274, for interest on the bequest, which she now claims in the present proceeding. The executor, however, sets up the rule of law, that where there is no contract to pay interest, if the party to whom the money is due accept the amount of the principal in full satisfaction, he cannot afterwards recover interest. I much doubt whether that rule should be strictly applied to a case of this kind. The executor is a mere trustee for the management of the estate for the benefit of all parties concerned. He acts in a fiduciary capacity, and the reason why he is chargeable with interest is, that the fund is supposed in the course of a year after the testator’s death, to come into the hands of the executor and to be earning interest. As between him and the cestui que trust, a mere receipt, even at law susceptible of explanation, ought not, it seems to me, to operate as an estoppel in equity, in bar of an accounting, when on an explanation of the facts, it appears that the cestui que trust has not been paid the full amount due. It is the duty of an executory trustee to see that the legatee is paid, and to apprise him in reasonable time of the amount due, and to offer- payment. (Merrick’s Estate, 1 Ash., 305.) He *287cannot take advantage of the mistake of the legatee, or bar his rights in equity by a receipt or even a release under seal, when error has been committed. Without however resorting to this principle I think the offer of the executor to pay the interest, in 1849, a sufficient acknowledgment that it still remained due, removing any possible presumption to be drawn from the receipt given for the legacy. This offer was in writing and admitted a “ balance of interest due”—referring the legatee to the counsel for the estate, to receive it on executing a release. Compound interest is never chargeable against an executor, unless he has been guilty of a gross violation of duty, and it cannot be allowed in this case any further than the executor has agreed to pay. The counsel to whom he referred the legatee in 1849, stated the amount then due at $366 38, and there must be a decree for the payment of that sum—each party paying his own costs.