The Hawaiian gazette., 1894-08-03

Having confidence in the ultimate
success OF the various enterprises in
which be was engaged notwithstand-
ing the heavy debt with which he
was burdened, it was desire on his
part to have the assets preserved in
their entirety if possible, and TO that
end he wished to have the business
continued and the debts and charges
upon the estate paid from the profits.
His desire was successfully carried
out and the residuary legatees upon
whom the charge of interest falls
were vastly benefited by it. The
equity of the case it seems TO us is in
favor OF the legatees and the pay
ment OF interest is to be governed by
the general rule.
We ind the general rule to be that
where the executor has assets in his
hands sufficient to pay the debts and
legacies IN full all such legacies are
payable at the expiration of one year
from the death of the testator unless
there is some express stipulation in
the will to the contrary and that the
statutory rate of interest is to be
computed from the date when the
legacies become due and that too
Notwithstanding that the condition
of the estate be such that the pay
ment OF the legacies was impractic-
able at the time.
We cite in support of this doctrine
the following cases:
Loring v. Woodward, Al n. H.,
391.
Rotch v. Emerson, los Mass, 431.
Kent v. Durham, LOG Mass, $50.
There has been no contention that
the assets of the estate were not
sufficient to pay the debts and legac-
les and it appears that the admins
traitors by judicious handling Of
this estate are now able to turn over
to the residuary legatees the assets
practically in their original form
and amount.
We recognize the rule as laid
down by this Court in the matter of
the estate of Jose Espinda, deceased,
decided at the December Term, 1898,
as applicable to cases Of that nature
where the executrix was charged
personally for some fault on her part,
but we are of the opinion that the
general rule as above set forth
should govern in cases like the one
before us.
We are therefore of the opinion
that all the last mentioned legacies
should be surcharged with interest
at the rate of nine per cent. per
annum to be computed from one
year after the death of the testator
until payment.
But one question remains and that
is as to the character of the legacy
to Miss Ella Lamb mentioned in the
codicil to the will. Miss Lamb is
mentioned in the will as legatee to
the amount of $4,000 and we have de-
termined that to be special legacy
bearing interest at the rate of eight
per cent. per annum from the death
of the testator.
Where two legacies are given to
the same person and the intent is
shown that the party is to have both,
such legacies are termed cumulative,
but where the second legacy is a re-
petition of the first amount or is
given instead, then it Is held to be
substitutional legacy and the legatee
is entitled only to the last amount.
We do not hesitate to pronounce
that this last legacy to Miss Lamb
to be cumulative, and as such, sub
ject to the same conditions and
provisions as the previous gift, and
consequently chargable with interest
at the rate of eight per cent. per
annum from the death of the tesla
tor.
Carter q Carter for the general
legatees; A. S. Hartwell for the adj
and residuary legatees.