Newhanover County NcArchives Court.....McKenzie, Vs. Smith 1811-18 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 8, 2008, 1:07 pm Source: North Carolina Reports Written: 1811-18 July Term 1811. McKENZIE and Wife v. BENJAMIN SMITH, Executor of WILLIAM DRY. From New Hanover. 1. Liability of a legatee, for interest upon the value of his legacy, to the executor and creditors. The general liability of a legatee to refund is measured by the value of his legacy; but whether he be liable for interest upon that value depends upon the particular circumstances of the case. 2. If he have good reasons to believe that the debt is just, and no dispute exist as to its amount he ought to contribute his ratable part of the debt immediately upon demand made. If he be guilty of improper delay, he shall be charged with interest. On hearing the bill and answer in this case, on a motion to dissolve the injunction, it was ordered and decreed that the injunction be dissolved as to part of the recovery at law, and that as to the other part the injunction be retained until further order, it was further ordered that this case be transmitted to the Supreme Court for decision on the following point: Whether a legatee, to whom a legacy is delivered over by the executor, who does not know that debts exist, shall be liable afterwards to refund the mere value of the property delivered to him, at the value when delivered to him, and no more; or whether the executor, having subsequent notice of existing debts, and giving notice to the legatee thereof, and demanding of him to refund his proportion of the legacy delivered for the payment of the debts, shall not, on the refusal of the legatee to do so, be entitled to charge the legatee with interest on the value of the property delivered over, from the time of such notice and refusal. Gaston for legatee. A. Henderson for executor. By the Court. The general liability of a legatee to refund is measured by the value of his legacy; but whether he shall be chargeable with interest upon that value or upon any part thereof, for not refunding when he has notice from the executor of existing debts, and he is called upon to refund his ratable part, and he refuses, must necessarily depend upon the particular circumstances of the case. If he has good reason to believe that the debt is just, and there be no dispute as to its amount, he ought to contribute his ratable part immediately upon demand made; and if the executor take from him no refunding bond, still he ought to contribute with the same promptitude as if he had given a bond; for here he is to contribute for the relief of the executor, from whom the creditor exacts his debt de bonis propriis. The refunding bond is given for the benefit and ease of the executor, that after two years creditors may be turned over to the legatees for their money; and as in cases where no bond is given, the executor shall recover interest if the legatee be guilty of improper delay in refunding his ratable part of the debt, so in cases where a bond is given, there seems to be no good reason why the creditor shall not have interest, if the legatee has been guilty of such delay. But the circumstances of each case must be looked to in deciding whether the legatee shall be chargeable with interest. It does not appear in the case before the Court what were the circumstances attending the debt, nor whether those circumstances were made known to the legatee when the executor gave him notice of the debt and called upon him to refund. It is surely not a general rule, that a legatee shall pay interest; and there not appearing in this case any peculiar circumstances to charge him, judgment must be entered in his favor upon the point sent to this Court. Additional Comments: North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. Uzzell and Company, State printers and binders, 1910. File at: http://files.usgwarchives.net/nc/newhanover/court/mckenzie522gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 4.5 Kb