Payne v. Smith
Superior Court of New Hampshire
Debt, for a legacy given in the last will and testament of William Wood, deceased. This action was founded on the following clause in the will of Wood, to wit: “ I give and bequeath to Sally Payne, wife of Samuel Payne, the sum of twenty dollars, to be paid in three months after my decease.’1 To show a demand of the legacy, the plaintiffs produced a power of attorney, dated March 7, 1838, purporting to be executed by the plaintiffs, and to be attested by William Johnson.
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Debt, for a legacy given in the last will and testament of William Wood, deceased. This action was founded on the following clause in the will of Wood, to wit: “ I give and bequeath to Sally Payne, wife of Samuel Payne, the sum of twenty dollars, to be paid in three months after my decease.’1 To show a demand of the legacy, the plaintiffs produced a power of attorney, dated March 7, 1838, purporting to be executed by the plaintiffs, and to be attested by William Johnson. This was a general power to Levi Wilson to demand and receive of said Smith all sums of money in his hands belonging to the…
1Opinion of the CourtUpham, J.
It has been contended in this case, that no demand was necessary as a previous requisite for the maintenance of this suit. The contrary of this is holden in the case, Pickering vs. Pickering, 6 N. H. Rep. 120. The reason for a demand is there alleged to be, that it is not the duty of the executor to seek the legatee. It is enough if he pay when the legatee comes and demands payment. That case was held to be an exception to the general rule. The legacy was there charged as an annual payment on land, and the defendant, having entered upon and accepted the land, was held bound to pay without…
2Cases cited6 opinions
- Bartlet v. KingMassachusetts Supreme Judicial Court · 1815
- Commonwealth v. FrostMassachusetts Supreme Judicial Court · 1809
- Clark v. HerringSupreme Court of Pennsylvania · 1812
- Beecker v. BeeckerNew York Supreme Court · 1810
- Pickering v. PickeringSuperior Court of New Hampshire · 1833
1 more not listed; retrieve them via the Exa API.
3Cited by3 opinions
- City of Trenton v. Fowler-Thorne Co.New Jersey Superior Court Appellate Division · 1959
- Rice v. Boston Port & Seaman's Aid SocietySupreme Court of New Hampshire · 1875
- Tappan v. TappanSuperior Court of New Hampshire · 1855