#### Will on Brandon: Hoffmeister and others, Appellants, vs. Amberg, Respondent.

*November 14*

December *5, 1916.*

*Limitation of actions: Pleading: Appeal: Review: Questions considered: Wills: Legacies, when payable: Interest: Delay in probating toiTl.*

1. In order that advantage may he taken of the har of the statute of limitations it must he specially pleaded.

2. Questions not raised in the trial court will not ordinarily be considered on appeal to the supreme court/

3. Where, in place of a provision in a will giving testator’s married daughter an equal share with his other daughters in the homestead, a codicil substituted a legacy of $200, to be paid to her by the other heirs “after my death,” such legacy was intended to become due and payable one year after testator’s death, that being the time generally limited for the payment of debts and legacies.

*3884. .Where, in such case, the other daughters had come into the use and possession of the homestead immediately after testator-’s death, the married daughter was entitled to interest on her legacy from the time it became due, although by agreement among the heirs the will was not probated until many years after.

5. A will may be admitted to probate at any time after the death of the testator.

Appeal from a judgment of tbe circuit court for Yernon county: E. 0. IIigbee, Circuit Judge.

*Affirmed.*

Tbe appeal is from a judgment of tbe circuit court reversing a judgment of tbe county court.

One Hugb Brandon of Yernon county died November 12, 1889, leaving a will dated February 26, 1886, and a codicil thereto dated July 23, 1887. Tbe said will and codicil were duly admitted to probate in June, 1910. Surviving said Hugb Brandon were bis widow, Mary Brandon, wbo died December 15, 1909, and tbe following named children: Mary, Anna, since deceased, *Eliza, Amberg*(respondent), Agnes, William, and Frank.

By tbe will there was devised to tbe son Frank eighty acres of land, and tbe rest of bis real estate, consisting of tbe homestead, to bis wife, Mary, for life, and after her death to bis four daughters in equal shares. To tbe son William was bequeathed tbe sum of $5, to a grandchild, Pearl, *the*second best cow, and tbe rest of bis personal property to bis three daughters, Mary, Anna, and Agnes. Tbe material changes by tbe codicil read as follows:

“1st. It is my wish that my homestead consisting of [description], shall be tbe home of my daughters Mary, Annie, and Agnes and that they have tbe control of tbe same, and also that my wife shall make her home upon tbe same and to receive her support and clothing from tbe same during her life.

“2d. Instead of my daughter *Eliza,*wife of Jobn Amberg, having an equal share of my homestead (after tbe death of my wife), I wish that my other heirs shall pay her after my death the sum of two hundred dollars, and that sum to constitute her entire share of my estate.”

*389Shortly after the death of Hugh Brandon the heirs, knowing of the contents of the will and codicil, agreed that nothing should be done with reference to a settlement of the estate during the lifetime of the widow, but all joined in a quitclaim deed to Frank of the property devised to him and he went into possession.

At the time of the settlement of the 'final account of the administrator with the will annexed in April, 1911, it appeared that, although the administrator treated the homestead as being so much cash in his final account, as a matter of fact no sale of the homestead was made and no personal property came into his hands, except that the two surviving sisters of the three who received the homestead gave him the sum of $200 to satisfy this bequest to *Elisa Amherg,*the sisters having retained and still retaining the homestead. On the application for final settlement a contention was made by the administrator that the legacy to *Eliza Amherg*could be discharged by the payment of but the $200, with no allowance for interest thereon. *Eliza Amberg*duly objected to such construction and demanded payment of the legacy of $200 with interest at the legal rate from one year after the death of testator. The county court disallowed any claim for interest on said sum, from which ruling *Eliza Amberg*duly appealed to the circuit court.

In the circuit court issues were framed upon a complaint *bj'Eliza Amberg*setting forth her contentions; and an answer was interposed on behalf of these two surviving sisters, but no questions raised therein as now suggested, that this' was a personal obligation of the sisters who took the homestead or that the statute of limitations applied.

Upon the hearing had it was stipulated, in addition to the facts above recited, that the widow, together with the three daughters, took possession of the farm and had the rents, issues, and profits thereof until after the death of the widow and also had possession of the personal property.

Upon his findings of fact the circuit court directed judg*390ment in effect construing tbe will so as to charge and burden tbe homestead devised to the three daughters with the payment of the sum of $200 and interest thereon from the period of one year after the death of the testator, from which judgment an appeal was taken to this court by the two surviving sisters who took the homestead, and the administrator.

For the appellants there was a brief by *O. J. Smith*and *E. J. Hammer,*and oral argument by *Mr. Smith.*

For the respondent there was a brief by *J. T. Dithmar*and *R. P. Glarlc,*and oral argument by *Mr. Dithmar.*

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 *391entertained 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 en*392titled 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.