Home LOUIS H. PORTER vs. PHILLIPS KETCHUM & others, executors.

348 Mass. 775

December 2, 1964

This is an appeal from an interlocutory decree sustaining a demurrer and from a final decree dismissing the bill. The bill alleges that "[t]he defendants as executors violated their duty to the plaintiff in failing to notify him at the time of the first payment [to certain other beneficiaries] of a cash legacy in full without a bond that they were making this payment . . . [and that] [t]he defendants violated their duty to the plaintiff in failing to pay . . . [him] his legacy in full at the time that the first cash legacy was paid in full without a bond and other security." It is clear from the allegations in the bill that the plaintiff received his legacy on August 6, 1963, which was within one year from the date of the testatrix's death. (The testatrix died on September 19, 1962.) The plaintiff seeks to recover "damages of 6% per annum from the date of the first payment of a cash legacy . . . [to others] to August 6, 1963." In essence, this suit is to recover interest on a legacy. One of the grounds of demurrer was that the "bill fails to set forth facts sufficient to warrant relief to the plaintiff." A demurrer should be sustained if any one of the grounds is good. North v. City Council of Brockton, 341 Mass. 483 , 484. "Unless it is otherwise provided in a will legacies are payable in one year from the death of the testator," Wellman v. Boston Safe Deposit & Trust Co. 295 Mass. 281 , 283, and interest on a legacy is not due and payable until at least one year from the testator's death. Miller v. Parish of the Epiphany, 302 Mass. 323 , 327. Sibley v. Livermore, 332 Mass. 730 , 736. Since the plaintiff received his legacy prior to the expiration of one year from the date of the death of the testatrix no right to interest on the legacy accrued.

Interlocutory and final decrees affirmed.

Home LOUIS F. PARADYSZ & others vs. COMMONWEALTH.

348 Mass. 775

December 2, 1964

The Commonwealth argues only that there was abuse of discretion amounting to error of law in the admission in evidence of the sale price of five tracts of land as comparable to the land taken (the locus) from the petitioners on May 2, 1958. All of the lands sold, like the locus, were open lands and had a frontage on Route 9 near the Amherst-Hadley line. The locus was farm land. The sales were of: (A) undeveloped land opposite the locus, April 7, 1956. (B) farm land, three quarters of a mile from the locus, March 3, 1959. (C) undeveloped land, adjoining the locus, May 2, 1960. (D) undeveloped land, next to A, May 27, 1963. (E) farm land, 700 feet from the locus, June 1, 1963.

Page 776

The elements of proximity or remoteness of the time of the sales, of the location of the sites, and other factors indicating similarity or difference, varying in each instance in relation to the locus, present questions of admissibility which were not beyond the range of judicial discretion. Johnson v. Lowell, 240 Mass. 546 , 549. Lembor v. Framingham, 330 Mass. 461 , 463. See Amory v. Commonwealth, 321 Mass. 240 , 255-256; Brush Hill Dev. Inc. v. Commonwealth, 338 Mass. 359 , 366-368; Leen v. Assessors of Boston, 345 Mass. 494 , 505-507. No error of law has been shown.

Exceptions overruled.