which, if in themselves not illegal, and such as an executor may properly do, might be validated by his subsequent appointment relating back to the time of doing the acts. No person, however, is required to deal with one who may thereafter be appointed as executor, trusting to the chance that he will be appointed, or to consent to appropriations made by him in the anticipation that they may thereafter be lawfully made. The case as here presented has also this peculiarity: that if the appropriation made by the plaintiffs while executors in New Hampshire, is to be treated as authorized, so as to bind Julius Adams, in whose favor the deposit was made, it is so because of their subsequent appointment in Massachusetts. Acts done in one capacity are thus treated as authorized by a subsequent appointment of the actors to another capacity. The plaintiffs are now attempting to administer the estate in Massachusetts. This is the foundation of their bill for instructions, yet the act concerning which instruction is asked was done while they were executors in New Hampshire only. At the time when the plaintiffs undertook to offer payment of the legacies, to appropriate a sum therefor, and to make a deposit thereof, they had no authority to do so in such manner that the rights of the legatees would be affected.

Nor, irrespective of this matter of the plaintiff's authority, are we of opinion that legatees are bound to accept a payment by installments which should operate pro tanto to diminish their claims. That it is an exceedingly convenient mode often of administering an estate to make partial payments to creditors or legatees when the rights of creditors are satisfied may be admitted. Orders to this effect are often made by courts, independently of statute authority, for the more convenient distribution of the estate, as the funds accumulated in administration by the collection of debts or the reduction of securities into possession would otherwise be substantially idle. In this commonwealth, the practice is recognized by statute, and the probate courts are authorized to order partial distribution of the funds. of estates in the course of administration. Pub. Stat. c. 136, § 21. If such an order is obtained, there would be much force in contending that interest should not, after such an order, or proper information of such an order, be allowed except on the balance of the debt or legacy which would remain after the ap

plication of the partial payment was, or might have been, made. No such order was passed or applied for, and the legatee or creditor ought not to be expected to receive payment of his legacy or debt in such installments as the executor may, in his own discretion, see fit to apportion to him. The existence of the power in the court to order partial payments, and its frequent exercise, do not indicate that the executors have any such power, but rather otherwise. If the legatee or creditor should consent to receive partial payments, which no doubt are often made without any order of court, it certainly would be right that interest on his claim should be diminished. In the case we are considering the two sums offered to Adams, and deposited to his credit, were refused by him, and it is conceded that they did not equal, interest included, the amount of the legacies to which, in his own right and that of his mother, he was entitled. Even if the offer was made that Adams should receive these sums for the legacies, leaving the question of interest upon them open for further consideration or litigation, he was under no obligation thus to accept them.

These views render it unnecessary to consider several points which have been quite fully discussed, viz., what was the true construction of the correspondence between the executors in some other respects, and whether Julius Adams might safely have accepted the offer of the executors without waiving his right to oppose the probate of his father's will in this commonwealth, which he was then contesting, and certain other claims made by him.

It is urged in connection with the claim for interest on these legacies that the conduct of Julius Adams in opposing the probate of his father's will in New Hampshire and in this commonwealth was litigious and unreasonable. So far as the legacy to Mrs. Adams is concerned, her estate should certainly not be diminished by any acts done by her son in his individual capacity. The facts are not before us upon which we could decide whether his conduct was litigious and his resistance to the probate of the will unwarrantable, even if we could hold that his claim. for interest should be affected thereby. It is without doubt true that, where the settlement of an estate is delayed by legal controversy, and where funds are accumulated under such circum

stances that they cannot be permanently invested, loss may be occasioned to the residuum of the estate. The contestant who disputes a will is still, however, in the exercise of his legal rights. It was held, therefore, in Kent v. Dunham, 106 Mass. 586, that the fact that legatees had caused delay by unjustifiable proceedings, embarrassing the executors in the settlement of the estate, was inadmissible for the purpose of defeating their claim to interest. On the other hand, we can perceive no ground for the claim on behalf of Julius Adams that interest should be computed on these legacies after the expiration of one year from the death of the testator, with annual rests, and thus that the legatees should receive compound interest.

The question remains to be determined at what rate interest shall be computed. It is urged on behalf of the residuary legatees that it should be something less than the legal rate, and that certainly this should be so after the deposit made by the plaintiffs, upon which only 22 per cent. was to be allowed. In the view we have taken the matter of interest is not affected by the deposit. That interest at the legal rate is payable after one year from the testator's death, is well established as a general rule in Massachusetts and New Hampshire. Loring v. Woodward, Kent v. Dunham, ubi supra; Ogden v. Pattee, 149 Mass. 82, 21 N. E. Rep. 227. Even where the estate could not have been reduced to money within that time, or where the administration had not been taken for a considerable time after the death of the testator, it would still be allowed to the legatee as an incident and accretion to the legacy. Ogden v. Pattee, ubi supra; Lamb v. Lamb, 11 Pick. 371; Martin v. Martin, 6 Watts, 67. This allowance is made, not merely because it will be presumed that the estate will, after the year has expired, have actually made this sum, but also because, as it would be difficult, if not impossible, to investigate how much interest had been made in such cases, it is a reasonable rule to adopt that rate of interest which the law has fixed where none other is stipulated for. It is urged that it is a matter of public knowledge that no interest can now be obtained as high as 6 per cent on any safe investment; that such an allowance should no longer prevail; that the court should determine, either directly or with the aid of a master, what could reasonably have been obtained, and that this

only should now be allowed. It is probable that the rate of interest does not so nearly represent now what can be earned by a safely invested fund as it did when it was originally established by statute as the legal rate, and that it would be difficult now to obtain it. But, as it is inferred that where no time is specified for the payment of a legacy it is not to be paid until the end of a year from the death of a testator, so it is a reasonable inference that the testator intended, if the legatee did not receive it until some time after that period, that he should then receive it with the interest allowed by law. His gift fairly imports this, because that is the rate where a debt or payment which is due in præsenti is deferred. This view is not in conflict with Williamson v. Williamson, 6 Paige, 298, and Healey v. Toppan, 45 N. H. 243. The question in these cases was not between legatees of specified sums and the estate, but between those who were the legatees, one class of whom were entitled to an estate for life in the legacy, and the other to the remainder. As between them, there was no doubt that the tenant for life, after the fund was actually formed, was entitled only to the interest or income which it produced. In determining what should be the basis of apportionment between them before the settlement of the estate and before it was actually formed and productive, it was determined that 5 per cent. upon it as ultimately ascertained would be right, as it represented the income which might have been obtained. It by no means follows that what is right as between legatees interested in different proportions in the same fund is a proper rule between a legatee of a definite sum and the estate of the testator. It is urged that by the English rule less than the usual or legal rate of interest is often allowed, and that the amount of interest which legatees are entitled to recover is regulated by the court of chancery with reference to the amount which executors could have made, and that this rate has been diminished from time to time' by reason of the change in the value of the interest upon money. Beckford v. Tobin, 1 Ves. Sr. 308, 311; Guilliam v. Holland, 2 Atk. 343; Wood v. Briant, Id. 523; Sitwell v. Bernard, 6 Ves. 520. The rule of the court of chancery appears from these cases to have been that it could determine, at its own discretion, how much interest should be allowed, and even without inquiry into the circumstances of any particular

case. Sitwell v. Bernard, ubi supra. No action could have been brought at common law to recover the amount of a legacy which was treated only as a direction to the executor. The remedy of the legatee was only in the ecclesiastical courts or the courts of chancery. These courts have always assumed the right to determine the terms on which the beneficiary should receive it. This is given as one of the reasons why an action at law should not be maintained for it. Deeks v. Strutt, 5 Term R. 690; Allen v. Edwards, 136 Mass. 138. In this commonwealth an action at law has long been the remedy to recover the amount of such a legacy. Allen v. Edwards, 136 Mass. 138, and authorities cited. Such is the rule, we believe, in most, if not all, of the states of the Union. While in many cases interest has been recovered, none has been cited or is known to us where it has been at less than the legal rate. It has been recovered upon the same principle that it is awarded in any case where the payment of a debt due has been deferred. We have no reason to believe that the law of New Hampshire in this respect differs from that which prevails in this commonwealth, and we do not feel authorized to change the rule so long as the statute remains unchanged which fixes a rate of interest. Kent v. Dunham, ubi supra; Ogden v. Pattee, ubi supra; Pub. St. c. 77, § 3; Wood v. Corl, 4 Metc. 203; Loring v. Woodward, ubi supra; Gen. Laws N. H. c. 232, § 2. The executors are therefore instructed that the legacies of $5,000 and $64,000 are payable, with legal interest, in a year from the death of the testator. Instructions accordingly.

Powers and Liabilities of the Administrator.*

NANZ v. OAKLEY.

120 N. Y. 84. 1890.

Appeal from supreme court, general term, first department. HAIGHT, J. One Eliza Mundy, as the present owner of the claim in suit, joins with the plaintiff in this appeal. The action was brought against the defendant, as surety upon an administrator's bond, to recover the amount adjudged by the surrogate

*See Secs. 1046-1050, Vol. 7, Cyclopedia of Law.