#### Lyon’s Adm’r v. Magagnos’ Adm’r.

April Term, 1851,

Richmond.

(Absent Cabell, P.)

1. Legacy—Direction to Be Paid a Year after Testatrix’ Death—Interest.—Testatrix gives a legacy, and directs it shall be paid within a year from her death. The legacy bears interest from the end of the year, though there is no hand to receive it for thirteen years.

2. Same—No Hand to Receive It—Duty of Executor.*— Where there is no hand to receive a legacy, the executor shonld invest it in an interest bearing fund, or bring it into Court to be so invested.

3. Same—Statute of Limitations—Case at Bar.—The legatee having died shortly after the testatrix and before a Qualification upon her estate in this country, and there having been no administration on the estate of the legatee for twelve years, the act of limitations of 1826 does not bar the claim for the legacy.

Anne M. G. Magagnos was a French woman who came to this country some time before 1807. At that time she lived in Norfolk, where she kept a clothing store, by which she made a considerable property. She returned to France in 1818, and died in 1826, at Marseilles. ^Shortly before her death she made her will, which was written in French, and was duly proved in France; and in August 1827 a copy properly authenticated was admitted to record by the Borough court of Norfolk. In August 1829 Joseph Magagnos qualified as administrator with the will annexed.

By one clause of her will she says: “I leave to Jean Fayene, and in case, of his death, to his children, and in case he has left no children, then to his heirs or legal representatives, 1200 dollars, or six thousand francs, also payable within the year of my decease. The said Jean Fayene was born in Washington, and was purser in the navy at Norfolk in Virginia during the time of the embargo. ’ ’

On the 28th of November 1840, Sanford Chancellor qualified as the administrator of John Fyon; and then filed his bill in the Circuit court of Norfolk borough against the administrator of Madame Magagnos, in which he charged that his intestate was the person referred to in Madame Magagnos’ will as Jean Fayene, he having been a purser in the navy at Norfolk at the time designated by her, and dealing largely with her at her store; and that he died between the first of the year 1827 and 1829. The administrator answered, denying that John Fyon was the Jean Fayene of the will; and relying upon the act of the 8th of March 1826 limiting proceedings against fiduciaries.

The evidence in the cause satisfied the Court below and this Court, that the intestate of the plaintiff was the party referred to in the will of Madame Magagnos; and the cause coming on to be heard in July 1843, the Court held that the plaintiff was entitled to the legacy of 1200 dollars, with interest from the 28th of November 1840; and directed an account of the defendant’s administration upon the estate of Madame Magagnos. On the next day, however, this decree was set aside, and the administrator admitting assets sufficient to satisfy the *decree about to be made, it was decreed that the plaintiff as administrator of John Fyon deceased, recover of the defendant as the administrator with the will annexed of Anne M. G. Magagnos, the sum of 1200 dollars, with interest thereon at the rate of six per cent, per annum, from the 28th day of November 1840 till paid, and his costs; thus giving interest on the legacy only from the date of the plaintiff’s qualification as administrator of Fyon. From this decree the plaintiff applied to this Court for an appeal, which was allowed.

W. Harrison, for the appellant,

referred to Granberry v. Granberry, 1 Wash. 246; 2 Fonb. Fqu. p; 432, *%*3; Bourne’s ex’or v. Meehan, 1 Gratt. 292.

There was no counsel for the appellee.

*

See monographic *note*on “Executors and Administrators.”

*157ABBEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that there is no error in so much of the decree as decides that the appellant is entitled to the legacy of 1200 dollars, mentioned in the wilt of the testatrix. But as by the terms of the will the said legacy was payable within one year after the decease of the testatrix, the Court is of opinion there was error in allowing interest thereon from the 28th day of November 1840, instead of allowing interest from a year after the death of the testatrix: the Court being of opinion that although there was no hand to receive the same, it was the duty of the representative of the estate of the testatrix to have invested the same in some interest bearing fund, or to have paid the same into Court to be invested ; and failing to do so, and retaining the fund, he should account for the interest. Burwell’s ex’or v. Anderson, 3 Leigh 348; S. C. 6 Gratt. 405; Bourne’s ex’or v. Meehan, 1 Gratt. 292. And the Court would now proceed to enter such a decree as the Court below should have done, if it appeared *that assets sufficient to pay the same had come to the hands of the appellee. But as the admission of assets was made with reference to the amount of the claim as ascertained by the interlocutory decree, such admission should not bind the party to the payment of the larger amount to which the appellant is entitled.

It is therefore adjudged and ordered, that so much of said decree as conflicts with this opinion, be reversed, with costs to the appellant ; and that the residue be affirmed. Cause remanded for an account of assets, unless a sufficiency to pay the plaintiff’s claim be admitted; and for a final decree according to the principles above declared.