The Hawaiian gazette., 1894-08-03
Mr.. Chief Justice Judd being dis
qualified from sitting, Circuit
Judge Cooper sat and heard the
case in his stead.
OPINION OF THE COURT BY JUDGE COOPER

OPINION OF THE COURT BY JUDGE COOPER,
This matter comes before the
Court on an agreed statement of facts
and submission of the questions in
controversy
The questions presented are, first,
is the estate chsrgable with interest
on the legacies mentioned in the
will; second, if so, from what date is
interest to be computed; and third,
at what rate is interest to be allowed
if any.
We find no difficulty in dealing
with the first three legacies mention
ed in the will, they being as follows:
To my son Samuel g. Wilder Jr.,
$4,000. To Miss Ella Lamb $4,000.
To my grandson Wilder Wight
$4,000, as the testator has coupled
the payment of interest at the rate
of s per cent. per annum with the
principal, by this act making the
legacies so far specific as to entitle
the legatees to interest from the
death of the testator.
The legacy to j. K. Wilder in
trust stands upon the same ground
with, those above referred to with
this exception, that it is to 'be left
with Wilder & Company for three
years" The question arising from
this clause is what rate shall be al
lowed after the expiration of the
three year term. In general contracts
where there is an agreement to pay
certain rate of interest atmaturity
but no rate is fixed when payment is
delayed, some of the Courts of the
Uuited States have decided that the
same rate shall continue as agreed
upon in the contract, while others
have held that the contract ceases at
maturity and that the statutory rate
must govern after that date. This
is the rule adopted in the late decis-
ions of the United States Supreme
Court.
See Holden " Savings and Trust
Company, 100 U. S. ".
The reasoning for the first position
being that the parties having stipul-
ated for a fixed rate while the con-
tract was in force, the same rate is
presumed to have been assented to
as the rate of damages to be allowed
for nonpayment. The case before
US, however, differs from that of
contract where the mutual consent
has been given by both parties, mas
much as the rate has been dictated
by the testator without any assent
on the part of the legatee. We hold
that after the expiration Of the three
year term this legacy bears interest
at the same rate hereinafter fixed for
general legacies.
The legacies to Jennie Tucker,
Gardner Wilder, Wilder Rose and
Wilder Lame, are general in charac-
ter.
1t is stated in the submission that
the administrators were advised and
that it was their opinion and belief
that sufficient moneys could be real
lied ont of the profits of the estate to !
pay the debts and legacies in full in
the course of five or six years;
whereas If the securities of the
estate were placed on the market
and sold without delay it was doubt
full whether there would have been a
sufficient realization to pay debts
and special legacies and leave a bal
ance for the rssiduary Iegdtees. The
debts and nearly all of the legacies
were paid out of the profits of the
estate. The administrators and
legatees claim that if inter
est is to be allowed at all it is to be
from the 18th day of June,
1893, the date when the debts were
inally paid IN full.
The residuary legatees lay great
stress upon that part of the will
where the testator says: Il wish the
business to go on as now 80 far as
all profits excepting only
ums sufficient for the support Of
ny wife and children, to be applied
o reducing debts, using the insur-
nee money. This can be done;"
tanning that by this the testator
meant to postpone the date at which
he legacies became due until after
be payment of debts from the
rofits of the estate. We do not so
egard this direction of the testator.