Opinion
Decided December, 1888.
Expenses lawfully incurred in defending an estate against claims accruing in the lifetime of the testator are not chargeable to the residuary legatee, but are to be paid out of the assets of the estate.
PROBATE APPEAL. Facts agreed. By his last will, John Burns, after making certain legacies, devised and bequeathed the remainder of his estate to Joseph Madigan; but if said Joseph should die under age and unmarried, then to the appellants. Joseph Madigan died July 12, 1888, under age and unmarried. The testator died September 22, 1874. The appellee was the guardian of Joseph Madigan, and had the care and control of the property derived from the Burns estate. He is also the heir at law of both Joseph Madigan and Mary Burns, wife of the testator, through said Joseph. At the request and on behalf of the executors of the Burns estate, the appellee incurred large expenses, prior to said Joseph's death, in defending certain claims against the estate. The questions in this case arise upon the settlement of his accounts in the probate court. The appellee claims the right to have these expenses paid out of the capital of the Burns estate. The appellants claim that the expenses should be paid from the income derived from said estate; also, that the appellee is not entitled to any part of the dividends on stocks belonging to said estate which had not been declared previous to Joseph Madigan's death.
J. Kivel, for the appellants.
J. Hatch, for the appellee.
The expenses of defending the Burns estate against the claims of Nancy Burns and Mary A. Berry were not chargeable to Joseph Madigan. That litigation affected him only as it diminished the estate. The suits being founded upon alleged claims accruing against John Burns in his lifetime, the reasonable expenses in defending against them were proper matters to be allowed by the probate court, and paid out of the assets of his estate.
It is a general rule of the common law that sums of money payable at fixed times are not apportionable during the intervening periods. A contract for the payment of rent at a specified time is not apportionable in respect of time, unless by special provision, and a covenant to pay rent on a specified day creates no debt until the day of payment arrives. Perry v. Aldrich, 13 N.H. 343; Russell v. Fabyan, 28 N.H. 543; Sohier v. Eldredge, 103 Mass. 345. So dividends on shares in corporations or joint stock companies are not apportionable, unless expressly so directed by statute or by the instrument under which the question arises. Cook Stock and Stockholders, s. 558; Per. Tr., s. 556; Foote, app't, 22 Pick. 299; Granger v. Bassett, 98 Mass. 462; Dexter v. Phillips, 121 Mass. 178. Annuities intended for the daily support of the beneficiary, as in the case of a child, or the separate maintenance of a married woman, or an annuity given to a widow in lieu of dower, and interest money accruing from day to day, are not within the rule. The difficulty of making an apportionment of dividends is one reason for the rule. It would be impracticable in many cases, and perhaps impossible in some instances, to determine the amount of net earnings at a given time with any degree of accuracy, and hence the earnings and acquisitions are treated as mere incidents to the capital stock, and undistinguishable and inseparable from it till set apart by the declaration of a dividend, when they become income as distinguished from capital. The undeclared dividends upon the stocks of the Burns estate accruing previous to the death of Joseph Madigan, go to the remainder-men as a part of the corpus of the estate.
Case discharged.
CARPENTER, J., did not sit: DOE, C. J., absent: the others concurred.