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(230 P.)

PER CURIAM. Upon a rehearing en banc, a majority of the court adhere to the opinion heretofore filed herein and reported in 227 P. 2, and the judgment is therefore affirmed.

delay. This affidavit was strongly contested by the respondent.

The fact in the case was that on July 22 it appeared that nothing had been done in some 60 cases that were on the docket, and the court, in order to clear the docket, and at the suggestion of the Chief Justice, made a sweeping order dismissing them for want of prosecution. Subsequently we disAp-covered that by chapter 10, General Laws of Oregon for 1923, which went into effect on Nov. 14, May 1, 1924, the court was prohibited from dismissing cases on its own motion, unless 30 days' notice had been given to the parties, so that all of these dismissals were in

STATE, Respondent, v. George DINAS, pellant. (No. 18442.)

(Supreme Court of Washington.

En Banc.

1924.)

Appeal from Superior Court, Snohomish fact void. County; Alston, Judge.

C. T. Roscoe, O. Duncan Anderson, and M. H. Forde, all of Everett, for appellant. Joseph H. Smith, of Everett, and A. R. Rutherford, of Morton, for the State.

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This case coming within this prohibition, we have no other course than to reinstate it. But there has been a great deal of delay already in the matter, and we will now require a brief to be filed here by appellant within 10 days from the date of this Otherwise the case will be subopinion. ject to dismissal in case respondent should so move.

DAVIS v. HARBAUGH et al. (No. 11044.) (Supreme Court of Colorado. July 23, 1924.) 1. Executors and administrators 295-With certain exceptions, executor has year within which to pay legacy, where will does not fix time of payment.

of legacy to testator's minor child, or one in residue of estate in trust, where will fixes no loco parentis, and in cases where legacy is of time for payment of legacy, executor has one year within which to settle affairs and within which legacy is not payable.

As general rule, subject to exception in case

2. Wills 734(1)—Rule as to interest on legacy is inapplicable, where legacy is of rents and profits.

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The rule that pecuniary legacy does not substance of gift is the rents and profits which draw interest is inapplicable, where the very the property yields.

3. Wills

486-Testatrix presumed to know extent of property and approximate amount of rents and profits.

Testatrix is presumed to know value and extent of property, real and personal, and approximate amount of rents and profits it would yield.

4. Courts 472(4)-County court alone may determine when legacy of rents and profits is payable, though not when computation thereof shall begin.

alone determine when rents and profits, the County court having charge of estate may subject of a legacy, are due and payable, though time when their computation shall begin is proper subject for determination, in action in equity to construe will.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

5. Wills 629-Law favors vested, rather than contingent, estates.

The law favors vested, rather than contingent, estates.

6. Wills 832-Doubt as to property liable for payment of claims resolved in favor of legatee favored by testatrix.

Where legatee of rents and profits had been treated as a daughter, was an invalid, and was unquestionably first in testatrix's thought, doubt as to property out of which claims against estate shall be paid should be resolved in her favor.

life if she shall survive me; provided, however, my said debts and funeral expenses and the legacy provided for in paragraph second shall first be paid.

"Fourth. I hereby give, bequeath and devise the rest, residue and remainder of my estate wheresoever situate, whereof I may die seized or possessed or to which I may in any manner be entitled or in which I may be interested at the time of my death to (here follow the names).

"Seventh. Power is hereby given to my executor hereinafter named to sell and convey by good and sufficient deed or deeds of convey

7. Wills 734 (6)-Rents and profits, sub-ance any and all of my real estate for the purject of legacy, computed from time of testa-pose of paying my just debts, funeral expenses, cost of administration and said legacy if it shall trix's death. be found necessary."

Rents and profits, the subject of a legacy, begin to accumulate at time of testatrix's death, though amount thereof is ascertained and made payable at later date.

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Department 1.

The district court construed clause 3 to mean, as contended by the executor and remaindermen, that the plaintiff, Grace Davis, was and is entitled to the rents, issues, and profits arising from the estate, "contingent and conditioned" that the debts, funeral expenses, and the legacy of $2,000 to the First Baptist Church of Greeley, Colo., provided for in clauses 1 and 2, first be paid from the rents, issues, and profits arising from the estate during the period of the first

year of administration thereof so far as sufficient, any remaining unpaid balance to be then paid from the corpus of the estate, and

Error to District Court, Weld County; that plaintiff is entitled to receive the rents, George H. Bradfield, Judge.

Action by Grace Davis against H. H. Harbaugh, as executor of the last will and testament of Mercy S. Thompson, deceased, and others. From decree for defendants, plaintiff brings error. Reversed in part, and cause remanded.

Joseph C. Ewing and Worth Allen, both of Greeley, for plaintiff in error.

issues, and profits arising from the estate only from and after the expiration of the first year of the administration thereof, to wit, February 24, 1924, less a deduction for payment made by the executor of an inheritance tax in behalf of this plaintiff. The plaintiff has brought the case here for a review of this judgment.

It is conceded by the plaintiff that her rights are subject to the inheritance tax ad

E. H. Houtchens, of Greeley, for defend- vanced for her by the executor. Her conants in error.

CAMPBELL, J. This is an action in equity by Grace Davis, a legatee, to obtain a construction of the will of Mercy S. Thompson, deceased, particularly of the third clause thereof, on which items 1, 2, 4, and 7 are supposed to throw light. These clauses

are:

"First. I direct that all of my just debts and funeral expenses be paid as soon after my decease as conveniently may be.

"Second. I hereby give, devise and bequeath to the First Baptist Church of Greeley, in Weld county, Colorado, the sum of two thousand ($2,000.00) dollars, said sum to be used for the benefit of said church as the board of trustees thereof shall deem wise.

"Third. I hereby give, devise and bequeath

to Grace Davis, the daughter of Ella Davis, the rents, issues and profits arising from my property, both real and personal, of which I may die seized and possessed for and during her

tention is here, as it was below, that the rents, issues, and profits of the entire estate belong to her, commencing at the death of testatrix, subject only to the proper deduction therefrom for enough to pay repairs, insurance, etc., if the corpus of the estate is sufficient to pay the debts, funeral expenses, costs of administration, and the legacy of $2,000. She insists that the creditors and the other legatee are not concerned, because all debts that are established against the estate and the legacy must first be paid, even though she receives nothing; but, as there is enough to pay all claims, the debts, legacy, etc., should be paid out of the corpus of the estate. The question for consideration, as both parties agree, is one between plain

tiff, the life tenant, and the remaindermen.

The admitted facts are that personal assets of the testatrix at her death are not sufficient to pay the debts, costs of administration, funeral expenses, and the legacy of

(230 P.)

mon-law rule as to the time of payment and the commencement of the enjoyment of the interest or income therefrom is not applicable. We said there that under our statute (sections 5358, 5361, C. L. 1921), such a legacy is not payable, in any event, until after the court in charge of the estate makes an order directing payment; and, as the legacy itself cannot be paid until after entry of the order, interest on the legacy, if pay

$2,000. The gross income from the improv-, Colo. 278, 138 P. 35, Ann. Cas. 1915C, 1166. ed property of the estate is about $225 per which decides that, where a legacy is a month. The estate is solvent, the real es- designated sum of money, the will not tate being of the value of $25,000 or $30,000. | specifying the time of its payment, the comThe executor and the only one of the remaindermen who appeared contend that the will requires that the debts, costs of administration, and the legacy be paid out of the rents and profits, and not out of the corpus of the estate, so that the corpus or principal of the estate at the death of the life tenant may pass intact and unimpaired to the remaindermen. While some reference or suggestion has been made in the briefs of counsel as to whether the will created or intend-able at all, begins to run only from the date ed to create a trust to be carried out by the executor, it is doubtful if such an issue is tendered in the pleadings, and it certainly was not determined by the district court, and we therefore express no opinion concerning it.

[1] In a leading case, Bartlett v. Slater, 53 Conn. 102, 22 A. 678, 55 Am. Rep. 73, it is stated to be the general rule that, where no time of payment of a legacy is fixed by the will, the executor is allowed one year from the testator's death to ascertain and settle his affairs, and meanwhile a legacy is not payable. Upon that ground, interest or income is payable on the legacy only from that time. To this general rule are recognized exceptions, of which two are relied upon by the plaintiff: One, where the legacy is given to the testator's minor child, or to one to whom the testator is in loco parentis, and there is no other provision for its maintenance. The other exception is where the legacy is of the residue of the testator's estate, or of some aliquot part thereof, in trust to pay the interest or turn over the income to the life tenant, remainder over at his death. Other cases of the same import are Cook v. Lanning, 40 N. J. Eq. 369, 372, 3 A. 132; Simonsen v. Hutchinson, 231 Ill. 508, 83 N. E. 183; Lacey v. Collins, 134 Iowa, 583, 112 N. W. 101; Greene v. Rathbun, 32 R. I. 145, 78 A. 528; Lewis v. Darling, 16 How. (U. S.) 1, 14 L. Ed. 819; Lamb v. Lamb, 11 Pick. (Mass.) 371; Lawrence v. Security Co., 56 Conn. 423, 15 A. 406, 1 L. R. A. 342; Bancroft v. Security Co., 74 Conn. 218, 50 A. 735; Sargent v. Sargent, 103 Mass. 297, 299; Lovering v. Minot, 9 Cush. (Mass.) 151; Van Blarcom v. Dager, 31 N. J. Eq. 783; Metcalfe v. Hutchinson, L. R. 1 Ch. Div. 591; Schouler on Wills (5th Ed.) p. 758, par. 579.

We do not think any of the authorities relied upon and cited by the executor are in point. Indeed,. the opinions in some of these cases recognize as exceptions to the general rule the two which the plaintiff here invokes as sustaining her contention. To avoid misapprehension, not because the instant case comes within it, it is appropriate to refer to Cobb v. Stratton's Estate, 56

of the order. The court went further in that case, and held that under our statute no provision is made for interest on a money legacy in an amount certain. We do not think the Cobb decision governs the case now before us. In one sense, interest on a legacy in a sum certain corresponds, if it is not equivalent, to rents and profits on the residue of the estate, real and personal.

[2] It should be borne in mind that the question for our determination is not when the rents and profits are due and payable, but when do they begin to run, or from what time are they to be computed? The rents and the profits are what the property itself yields. They are the very substance of the gift. They represent the usufruct of the estate, and therefore the Cobb rule, that interest on a legacy is not allowed, does not apply here. There the point first determined was that a pecuniary legacy in a fixed sum does not draw interest; and, secondly, if it did, the interest would not begin to run until after the county court in charge entered an order directing payment of the legacy. The question here involved was not an issue there; it is, not whether interest is provided for rents and profits of a residuary estate, but when do the rents and profits themselves begin? The parties here are agreed that the plaintiff is entitled to rents and profits. The Cobb Case throws no light upon the time when they accrue. With that question prior claimants are not concerned, for as to them plaintiff gets nothing until after they are satisfied; so that they get their money, they do not care from what source it comes, but as between the life tenant and the remaindermen it is an important question.

[3] The testatrix is presumed to know the value and extent of her property; how much was real estate, how much was personal. She also knew approximately the amount of rents and profits that it would yield. If it was her desire to devote rents and profits to the payment of debts and a prior legacy, etc., and not immediately to the maintenance of the plaintiff, who was the first object of her solicitude and care, and whose necessities began the moment of her benefactor's death, it is strange, indeed, that she did not ex

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230 PACIFIC REPORTER

declare. Such an intention, I mented in value to the extent of the total If prior claims pressly so which is inconsistent with what she express- amount of such payment. ly said in the will, is also negatived by the must come out of the corpus, then the plainseventh clause, in which is conferred on the tiff will receive out of rents and profits a executor, if found necessary, the power to sum equal to the amount of the prior claims, sell any or all of her real estate for the pur- which otherwise would finally go to the repose of paying the prior claims and demands maindermen, if payment of prior claims is and the legacy. The rents and profits, and out of rents and profits. That, if the prior all of them, the testatrix knew would be claims are paid out of the proceeds of the needed to care for her daughter. And it is sale of the corpus of the estate or some part not a reasonable implication that she in- thereof the capital fund, on which plaintiff's tended to give to her. executor the power to future rents and profits are to come, will withhold from the plaintiff, who was in such thereby be diminished to the extent of its sore need, the rents and profits until after value, and that, if her rents and profits are prior claims, a charge on her entire estate, used to liquidate them, the capital fund reAs between were satisfied out of them, when she ex- mains intact, is no justification, against her pressly empowered the executor to satisfy, protest, for so applying them. if necessary, prior claims from the proceeds the life tenant and the remaindermen, they are to be paid out of such portion of her of the sale of her real estate. residuary estate as she chooses. All of it is hers for life; her devise and legacy of rents and profits therefrom is in law equivalent to The remaindermen are not a devise or legacy of the real and personal estate itself.

[4] The parties being in accord that the rents and profits are a charge upon the estate, and are to be paid before the affairs of the estate are settled, we do not decide, and, under the decision in the Cobb Case, only the county court that has charge of the es- vested with the option; it is her option to tate may determine, when the rents and prof- designate what portion of her estate shall its are due and payable. The beginning of first be applied to the prior claims. If ultithe time for their computation, however, is mately her present desire, when accomplisha proper subject for determination in this ac-ed, results in her loss and to the gain of the tion. The cases above cited abundantly sup- remaindermen, she may not complain, and, of port the plaintiff's contention that the rents, course, they would not. issues, and profits begin with the death of the testatrix.

[5] The law favors a vested, rather than a contingent, estate. As between the plaintiff legatee and the church, which has a specific pecuniary legacy, and as to the debts, funeral expenses, and costs of administration provided for in the first and second clauses, and which by the third clause are directed to be first paid, the plaintiff's rights in the estate under the third clause are subject and inferior. If all of the estate would be consumed in paying them, plaintiffs, of course, would get nothing, but though the personal property of the estate, primarily the fund for paying legacies, is insufficient, the realty is more than adequate therefor. The real question then is: May the executor pay the prior claims, in whole or in part, out of the rents and profits of the residue of the estate which are given to the plaintiff for life, or is he restricted to the corpus or principal of the residuum estate in discharging them? If there be only enough property to discharge the prior claims, there would be no residuum of the estate for the plaintiff, the life tenant, but there is, or will be in due course of time, much more than enough assets to pay prior claims out of the rents and If out of the profits or out of the corpus. rents and profits, exclusively or in part, the plaintiff's income, until full payment of the prior claims is made, will be nothing, and the corpus or principal of the estate, at the death of the life tenant, which will then

Obviously, and so the district court held, it was the intention of the testatrix to provide for life adequate maintenance for the plaintiff, whom she considered as her daughter, and who, as the testatrix knew, was, and would probably continue to be, a hopeless invalid. She had no resources of her own and was unable to earn a living, and, considering her physical condition, she was and is as incapable to care for or support herself as if she were a minor child. For one so incapacitated the rents and profits of the entire residuum of the estate would be necessary. The plaintiff's mother, from her early infancy until her death, and the plaintiff herself, from the time of her own birth, lived continuously with the testatrix and her husband and until the husband's death, and thereafter the plaintiff lived with the testatrix until the latter's death. The plaintiff's mother was always considered by her bene factors as their own daughter and the plaintiff as their granddaughter, though neither was legally adopted. Mother and daughter lived in the Thompson family as members thereof, were supported and maintained as such by the Thompsons, and treated as if they were legally adopted, or had been their own children.

[6] In view of these relations, as between plaintiff and the remaindermen, plaintiff was unquestionably first in the thought of the testatrix. If there is any doubt or uncertainty about the source or the property out of which should come the money to pay prior claims, it should be resolved in her favor.

(230 P.)

moment of her death upon the bounty provided in her will, should enjoy the income of the residuary estate in its entirety from the moment of her death.

As between a life tenant and a remainder- tatrix knew was wholly dependent from the man, the former is first in order of taking, first in order in receiving the bounty of a testator, and ought first to receive the attention of the court, and in doubtful cases a first taker is preferred. Metcalfe v. Hutch- [7] Section 5358, C. L. 1921, is also invokinson, supra: 40 Cyc. pp. 1413, 1415, 1417; ed by the executor and the remaindermen. 28 R. C. L. pp. 270, 272. The testatrix knew This section authorizes the county court to that plaintiff was dependent for support upon direct the executor, in certain circumstances, her bounty, which was provided in the will, to pay all legacies, and no such order has and that payment of prior claims must be been made by the county court in this esmade out of the residue of property included tate. Absence of such an order might have in the third clause, either of the principal been urged below as showing the suit to be or the income. If the executor has the pow- premature, though we do not say that such er to apply, and may only apply, the rents would be the effect. We must presume, howand profits for the first year to the prior ever, that the executor will not pay any claims, plaintiff's source of maintenance legacy or demand against the estate until the meanwhile is cut off, and the remaindermen's proper order is made by the county court, bounty is increased. If payment is made and that the county court in due time will from a sale or mortgage of the principal or make the order. We also may rightly presome part thereof, plaintiff will or should en-sume that, if it becomes necessary, the counjoy the use of the rents and profits accru-ty court might and will require, if the finaning from and after the death of the testa- cial condition of the estate justifies it, that trix. We see no reason why the remainder- the executor from time to time shall make men should be preferred and get an advantage at the expense of the life tenant, which testatrix never intended. It may be said, and we have not made the calculation to determine, that, since in any event these prior, claims are to be satisfied out of the residuum of the estate, either from the income of the same or of the corpus itself, it is immaterial to the plaintiff whether the executor applies the rents and profits thereto or discharges them with the proceeds of a sale or mortgage of the principal. The answer is that the plaintiff needs, from the very moment. The time for the beginning of the ment of the death of the testatrix, the rents and profits for her very existence, and is given the right by the will so to apply them. She was first in the eye of the testatrix; the preference is hers. We think the common-law rule justifies our conclusion.

advances out of available funds in his hands to the life tenant for her maintenance, until such time as it may legally ascertain the amount of the entire indebtedness of the estate, which cannot in any event be until after the expiration of one year from the granting of letters of administration. The rule which we say is applicable here is not at all inconsistent with the decision in the Cobb Case, that in no event is a legacy payable until after the entry of an order by the court having charge of the estate, directing pay

rents and profits should begin with the death of the testatrix, even though the amount thereof is ascertained and made payable at a later date in the course of administration.

[8] We conclude therefore that, since the plaintiff is, for the purpose of this case, to Has section 5262, C. L. 1921, changed it? be considered as the minor daughter of the This section declares that the executor is enti-testatrix, for whose maintenance this legacy tled to and shall receive the rents, issues, is the only provision, and as the legacy or and profits arising out of the real and per-devise of the residuary estate is for her life, sonal property of the estate, and when col- with the remainder over, and the will itself lected the same shall be assets for the pay- has not fixed the time when the rents, isment of debts, legacies, and costs of admin-sues, and profits are to begin, the right of the istration, and shall be administered as is life tenant thereto begins from the death of money arising from the sale of personal property. The section is cited by the executor as authority for applying the rents, issues, and protfis to the payment of the prior claims. We do not think it is. The statute says such application may be made, "unless otherwise provided by will." Mrs. Thomp- or in part. They must be satisfied by sale son's will has "otherwise expressly provided" that the rents, issues, and profits shall go to the plaintiff, and her right thereto, which is the usufruct of the devised estate, begins with the death of the testatrix. This is so under the common-law rule when the will has not otherwise fixed the time, and the entire scheme of this will contemplates that the plaintiff life tenant, whom the tes

the testatrix, though the amount thereof is to be computed later, and the time of payment is to be fixed by the county court. As the principal of the estate is abundantly sufficient to pay the prior claims, the rents and profits shall not thereto be applied, in whole

or mortgage of the principal or corpus. The decree of the district court, which in some respects harmonizes with our conclusion, may be by it either modified so as fully to coincide and comply therewith, or, at its option, set aside in its entirety, and a new one entered, which must be in accordance with the views expressed in this opinion. The district court divided the costs equally

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