(Syllabus by the Court.) 1. Wills 733(1)-Probate court must order legacy paid before it can be legally demanded. Payment of a legacy cannot be legally demanded until the probate court has ordered it to be paid. cepted by agreement between the parties without prejudice to the claim for interest. When the appeal came on for hearing, the executor conceded that the legacy bore interest from June 26, 1919, and the court rendered judgment for interest from that date to the date on which the principal had been paid. The legatee appeals. [1, 2] The cases which have considered the question of the date from which legacies draw interest are collected in notes found 2. Wills 734 (4)-Legacy does not bear in- in 6 Ann. Cas. at page 525, and in Ann. Cas. terest until payment may be legally demanded. 1912B, at page 244. At common law a A legacy does not bear interest until pay-general legacy began to draw interest one ment may be legally demanded, unless the will makes a different provision for interest. Appeal from District Court, Big Stone County; S. A. Flaherty, Judge. year after the death of the testator, on the theory that the executor ought to have the es tate settled so as to enable him to pay legacies at the expiration of that period. There were exceptions to this rule not necessary to mention here. Where probate proceedings are governed and regulated by statute as in this state, a legacy does not draw interest until payment of the legacy could be legally demanded, unless a different provision for interest is made either by the will or by the statute. Petition by Clarence E. Wiley against Ernest H. Lockwood, executor of the estate of Frederick Lockwood, deceased, for a probate order directing payment of legacy. Judgment for plaintiff, and the executor appealed and thereafter paid the legacy without prejudice to the claim for interest. Judgment for interest, for less time than asked, In Huntsman v. Hooper, 32 Minn. 163, 20 and the legatee appeals. Affirmed. N. W. 127, it was held that a legatee could A. B. Kaercher, of Ortonville, for appel- not maintain an action to recover his legacy lant. until the probate court had ordered it to be Cliff & Purcell, of Ortonville, for respond- paid. After considering the statutes then ent. in force, the court said: "We think that the manifest theory of our TAYLOR, C. Frederick Lockwood died statutes governing the administration of esNovember 18, 1917, and by his will bequeathed tates, is that the rights and claims of all perthe sum of five thousand dollars to his sons interested in the estate of a decedent are grandson, Clarence E. Wiley. The will was to be determined and passed on, in the first inadmitted to probate December 24, 1917, and stance, by the probate court; and that all monletters testamentary were issued to the exec-eys, whether to creditors, legatees, or next of kin, are to be paid out of the estate upon order utor therein named January 4, 1918. The or decree of that court first duly made." present controversy was submitted to the court below on a stipulated statement of facts in which it is stated that the only question in dispute is whether the legatee is entitled to interest on his legacy from the date of the death of the testator or only from June 26, 1919, the date on which certain litigation relating to the estate had been finally terminated and settled. The legacy was not involved in the litigation and the executor at all times had sufficient funds in his hands to pay all claims against the estate and all legacies. On December 18, 1919, the legatee made a petition to the probate court for an order directing the executor to pay the legacy with interest thereon from November 18, 1917. On January 17, 1920, the probate court made an order directing the executor to pay the legacy forthwith together with interest thereon from November 18, 1917. The executor appealed to the district court. Thereafter and before hearing on the appeal, the principal of the legacy was paid and ac While many changes have been made in the statutes governing the probate of estates since that decision, the theory there explained persists through all these changes. The legislative intent that no claim against an estate shall be paid until it has been allowed by the probate court, and that the estate, other than certain allowances to a widow or minor children, shall not be assigned or distributed, either in whole or in part, until ordered by that court stands out more clearly in the statutes as they now exist than it did in the statutes there considered. The appellant did not apply for an order for the payment of his legacy until ' December, 1919. While the probate court might, perhaps, have made an order for its payment without waiting for such an application, the court did not do so. It is obvious, therefore, that the appellant has no lawful claim for any greater amount of interest than was allowed him by the district court, and the judgment of that court is affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes SPANGENBERG v. CHRISTIAN. (No. 22634.) (Supreme Court of Minnesota. Feb. 10, 1922.) (Syllabus by the Court.) 1. Appeal and error 238 (2)-One not moving for directed verdict cannot claim error for refusal of judgment notwithstanding verdict. a new trial, an order was made denying judgment but granting a new trial unless plaintiff consented to a reduction of the verdict to $7,500. Plaintiff consented, and the defendant appeals. Order affirmed. Donald L. Pomeroy, of Minneapolis (Jamison, Stinchfield & Mackall, of Minneapolis, of counsel), for appellant. L. W. Crawhall, of Minneapolis, for respondent. HOLT, J. For the alienation of his wife's One who has not moved for a directed verdict before the case was submitted to the jury is not in a position to claim error on appeal because the court below refused to order judg-affections the jury awarded plaintiff damment notwithstanding the verdict. There was no error in submitting the question of punitive damages to the jury, nor in charging that compensation for injury to the feelings could be made. 6. Appeal and error 216(1)-Error cannot be assigned for failure to instruct in absence of request. No instruction was requested on the subject of mitigation of damages, and there can be no error assigned upon the failure to instruct thereon. ages in the sum of $10,000. On defendant's motion for judgment notwithstanding the verdict or a new trial, an order was made denying judgment but granting a new trial unless plaintiff consented to a reduction of the verdict to $7,500. Plaintiff consented. Defendant appeals. [1] That part of defendant's motion which was for judgment non obstante could not be considered in the court below, and cannot here, for there was no motion for a directed verdict at the close of the evidence. The appeal is therefore limited to the question whether the court erred in denying a new trial. [2, 3] Rulings upon the admissibility of It is testimony are assigned as erroneous. plain that the exclusion of an answer to a question inquiring as to the reason why the witness went out with his brother does not There was no offer to call for a reversal. show what facts the answer was expected to bring out, and the question itself did not suggest that any material or relevant evidence was called for. The court ruled that witnesses might testify to what they had heard plaintiff's wife tell as to how she felt towards her husband, but not to what she had This evitold as to his treatment of her. dence related to a time long prior to plaintiff's and his wife's acquaintance with defendant. In Luick v. Arends, 21 N. D. 614, 132 N. W. 353, the court states: "Her declarations may be admitted to the effect that she does not love her husband, but her declarations of facts or reasons to justify or explain her lack of love are inadmissible and hearsay, the same as a statement to a third party without the presence of the hus 7. New trial 104 (3)-Denial for newly dis- band that the husband did or said a certain thing." covered cumulative evidence not abuse of discretion. There was no abuse of discretion in denying a new trial on the ground of newly discovered evidence. The purpose of defendant in offering the testimony was, no doubt, to show that plaintiff had lost his wife's affections prior to her acquaintance with defendant, and for such Appeal from District Court, Hennepin purpose declarations as to her feelings were County; W. C. Leary, Judge. Action by Theodore G. Spangenberg against Harry Christian. On defendant's motion for judgment notwithstanding the verdict or for admissible, under the rule stated, but her recital to a witness of plaintiff's treatment of her would be pure hearsay. Ample opportunity was given to offer direct proof of the treatment plaintiff subjected his wife to be (186 N.W.) fore she met defendant. The jurors were not kept in ignorance either as to plaintiff's conduct toward his wife, or towards other women. As to the latter complaint is made because testimony was excluded as to certain matters which took place within two months of the trial, that is, after the time covered by the pleadings and after defendant's alleged wrong had been consummated. We think there was no error here. that subject, or any suggestion as to a desire in that direction. [7] The request for a new trial on the ground of newly discovered evidence rested to a large extent in judicial discretion. We see nothing in the showing to indicate that in denying the request there was an abuse of this discretion. Moreover, the evidence which defendant proposed to adduce was largely cumulative; and for that reason alone justified the court's order. Order affirmed. WENGER v. ANDERSON. (No. 22627.) (Supreme Court of Minnesota. Feb. 10, 1922.) (Syllabus by the Court.) building contractor, evidence held to sustain finding for damages. [4] It is earnestly contended that the evidence fails to show that defendant was the cause of plaintiff being deprived of his wife's affection and companionship. The evidence has been examined and found ample to sustain the verdict in that respect. It would serve no useful purpose to give a résumé of the testimony concerning defendant's conduct towards plaintiff's wife. It is enough to say that defendant and his wife separat- Contracts 322(4)-In owner's action against ed before the actual rupture between plaintiff and his wife. The jury had ample foundation for the inference that defendant was the moving cause for breaking up of both homes. His visits to plaintiff's home, when plaintiff was away, were so frequent and prolonged as to attract the attention of the neighbors, as did also the numerous automobile trips of the two. Plaintiff was working for defendant during most of the time, and the latter knew when the former was in the shop, and the coast clear to his home. Repeated express promises by defendant to cease his attentions to plaintiff's wife were made according to plaintiff's testimony, and immediately broken. Defendant's denials were faint, to say the least. The verdict is assailed as excessive. We cannot disturb it as modified and approved by the learned trial court, who cannot be accused of being biased in the premises. The amount of the damages in actions of this nature cannot be measured by any set stand ard. It must rest largely in the sound common sense of the jury. We fail to find anything in the record that would tend to incite the jury to passion or prejudice. In Mullen v. Devenney, 183 N. W. 350, a verdict for $23,000 was apparently not even questioned as excessive. [5] There was no error in submitting the question of punitive damages. White v. White, 140 Wis. 538, 122 N. W. 1051, 133 Am. St. Rep. 1100. Nor in charging that the jury should compensate for injury to plaintiff's feelings in being deprived of the society and affections of his wife. French v. Deane, 19 Colo. 504, 36 Pac. 609, 24 L. R. A. 387. [6] We cannot reverse for failure to charge that the jury should consider in mitigation of damages the character and conduct of plaintiff in respect to his marriage obligations, and the extent to which he had thereby lost the love and companionship of his wife, for there was no request to instruct on Action by the owner against his contractor to recover for labor and material going into a dwelling which defendant agreed but failed to pay for, and for damages for defective work and material. Evidence considered, and held sufficient to sustain the finding. Appeal from District Court, St. Louis County; Richard T. Daly, Judge. Action by Harry S. Wenger against Merle O. Anderson. Judgment for plaintiff for part of the amount asked, and, from an order denying his motion for amended findings or for new trial, plaintiff appeals. Affirmed. H. B. Haroldson, of Duluth, for appellant. John Jenswold and John D. Jenswold, both of Duluth, for respondent. QUINN, J. Plaintiff and defendant entered into a contract by the terms of which defendant agreed to furnish the material and to construct a dwelling for plaintiff at the agreed price of $14,275. The structure was practically completed on November 3d, when plaintiff moved in. Plaintiff seeks to recover for certain labor and material which defendant furnished and failed to pay for and for damages on account of poor workmanship and material. The cause was tried to the court, findings made, and judgment entered in favor of plaintiff for $691.76, with interest and costs. From an order denying his motion for amended findings or for a new trial plaintiff appeals. It is alleged in the complaint that defendant failed to pay for labor and material that went into the building, amounting to about $5,000, that liens therefor have been or will be filed against the premises, and that he is entitled to recover damages for the poor workmanship and material furnished in the sum of $3,000, and asks that an offset be made of the unpaid balance of the contract price and that he have judgment for the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes balance in his favor. Upon the other hand, defendant alleges in his answer that there is due and owing to him upon the contract price and for extra work and material fur nished the sum of $537.10, for which amount, with interest and costs, he asks judgment. It appears that many changes were made in the plans and specifications during the construction of the dwelling, at the request of plaintiff, for which defendant furnished material and labor to the amount of $1,697.62, which, together with a commission of 10 per cent. thereon as defendant's compensation for making such alterations, amounts to $1,867.38, which, together with the contract price, entitled defendant to a credit of $16,142.38; that plaintiff has paid to defendant upon the contract price the sum of $11,642, and that he is entitled to a credit on account of liens against the premises for $4,821.14 and to recover damages for poor workmanship and material in the sum of $370, in all the sum of $16,834.14, leaving a balance of $691.76 in his favor for which amount he is entitled to judgment with interest and costs. There are thirty-nine assignments of error going largely to the proofs relating to extra work and material furnished by defendant for changes in the plans. We have gone over this phase of the case in detail and find no reversible error in the record in relation thereto. There was a conflict in the testimony in this respect which made a clear question of fact for the court to determine. With reference to the charge of 10 per cent. on the cost of the labor and material, there is evidence that such was the customary charge and that it was of that value, and the court so found. It is contended that plaintiff is entitled to an allowance of $158.35 for interest on the lien claims and $149.15 for attorney's fees, costs, and disbursements in the lien proceedings. Neither of these items is mentioned in the pleadings, nor does the plaintiff ask for the same in his motion for amended findings so as to place himself in a position to ask a reversal upon such grounds. Neither was there any proof offered upon the trial bearing upon these items. It appears from the record that all matters in dispute between the parties were litigated by consent, regardless of the allegations in the pleadings. The court evidently treated the question of interest upon the unpaid balance of the contract as an offset against interest on the lien claims, and under the circumstances failed to allow any costs or disbursements in the foreclosure of the liens. Neither the assignments of error nor the motion for a new trial places appellant in a position to ask for a reversal upon these grounds. Affirmed. RICKER v. J. L. OWENS CO. (No. 22652.) (Supreme Court of Minnesota. Feb. 3, 1922.) (Syllabus by the Court.) 1. New trial ›163(2)—Court in denying new trial held not to have considered ground of newly discovered evidence. The plaintiff sued to rescind for fraud the purchase of stock in the defendant J. L. Owens Manufacturing Company and to recover the purchase price paid. The trial court found fraud. It denied a recovery because of the plaintiff's laches. On appeal by the plaintiff the order denying a motion for a new trial was reversed upon the ground that laches preventing a recovery was not shown. 182 N. W. 960. Subsequently the order of reversal was for the plaintiff for the amount demanded subamended so as to direct the entry of judgment ject to the right of the defendant to move for a new trial of the issue of laches. The defendant made a motion for a new trial, one ground of which was newly discovered evidence. It is held: That the record shows that the court in denying the motion did not consider the ground of newly discovered evidence. 2. Appeal and error 1202-Motion for new trial under mandate from Supreme Court held addressed to trial court's discretion. That the motion for a new trial for which the mandate provided appealed to the trial court's discretion, upon the record as it stood, stead of enter a judgment for the plaintiff as to grant a new trial of the issue of laches inalternatively ordered; and that the court properly denied the motion. 3. Appeal and error 1202-Party defeated upon appeal held entitled to move for new trial for newly discovered evidence notwithstanding mandate from Supreme Court. That upon the reversal the defendant was the defeated party and was entitled to present a motion for a new trial upon the ground of newly discovered evidence. The provision in the mandate granting leave to move for a new trial of the issue of laches did not prevent a motion upon the ground of newly discovered evidence; nor did the defendant need permission from this court to make such motion. Refusal to 4. Appeal and error 867 (1) grant new trial for newly discovered evidence properly alleged on appeal from its denial. That on appeal from the order denying its motion for a new trial the defendant can allege error in the refusal of the court to consider its motion based on the ground of newly discovered evidence. 5. Appeal and error 14(2), 1194(3)-Defeated defendant after remand held entitled to contest issues in trial court and to review decision on appeal. That the defendant, not having had an opportunity to contest the finding of fraud against it, or any error of law inhering in such finding or in the determination of a question not concluded by the determination of the issue to (186 N.W.) laches, may contest the same in the court below, and review the decision on appeal. "At the opening of said argument upon said motion plaintiff objected to defendant presenting argument or affidavits in support of its mo Appeal from District Court, Hennepin | tion on any other ground than that specified County; W. W. Bardwell, Judge. Action by Emilie S. Ricker against the J. L. Owens Company. An order denying new trial was reversed on appeal of plaintiff (182 N. W. 960) and subsequently plaintiff moved for amendment of the order of reversal so as to direct entry of judgment in her favor. Amendment allowed and order appealed from reversed with directions to render judgment for plaintiff subject to defendant's right to move for new trial on the issue of laches, whereupon defendant moved for a new trial on the ground of newly discovered evidence. Motion denied, and both parties appealed. Affirmed in part and reversed in part and in the order of the Supreme Court, the issue of laches, and in accordance with the order of the Supreme Court filed in said action the court ordered that the motion of defendant be presented on this issue solely, exception to which was duly made by defendant." The order permits no other construction than that the court limited the presentation of the motion and its ruling thereon to the issue of laches. [2] 2. The motion referred to in the order of reversal invoked the court's discretion to grant a new trial of the issue of laches instead of granting judgment as alternatively ordered. This court was of the opinion that upon the record the plaintiff was entitled to judgment; but it left it to the discretion of remanded. Selover, Schultz & Mansfield, of Minneapo- the trial court to determine whether instead lis, for appellant. of judgment there should be a new trial of O'Malley & O'Malley, of St. Paul, for re- the issues of laches. The trial court deterspondent. mined that there should not be a new trial. Its order in this respect is sustained. DIBELL, J. This is an action for the re[3] 3. When the case was reversed the decission for fraud of a contract of purchase by fendant was the defeated party. The most the plaintiff of stock in the defendant J. L. that it could get was a new trial of the issue Owens Manufacturing Company and for the of laches which had been found by the trial recovery of the money paid. The trial court court in its favor; if not that, judgment, as It found the fraud charged. It found that the the record stood, would go against it. plaintiff was guilty of laches and for that reawas entitled to present a motion for a new son denied a recovery. The plaintiff appeal-trial upon the ground of newly discovered ev-, ed to this court from an order denying her idence though defeated on appeal. Sheffield motion for a new trial, and the order was re- v. Mullin, 28 Minn. 251, 9 N. W. 756; Archer versed. 182 N. W. 960. Afterwards the plain-V. Whitten, 120 Minn. 433, 139 N. W. 815; tiff moved in this court for an amendment of the order of reversal so as to direct the entry of judgment in her favor. The theory of the motion was that since the court below had found fraud, and this court had determined that there was no laches, the plaintiff should recover. The motion was resisted. The court in disposing of it made this order: "The order remanding this cause will be and is amended to read as follows: It is therefore ordered, that the order appealed from be reversed with directions to the court below to render judgment for plaintiff for the amount claimed in the complaint, subject to the right of defendant to move the court below for a new trial of the issue of laches." The defendant Owens Company then moved for a new trial and assigned newly discovered evidence as one ground. The motion was denied. Both companies join in the notice of appeal though but one made the motion. This does not seem important. [1] 1. The trial court considered the motion as limited to the ground specified in the mandate, that is, the issue of laches; and it ruled that it was without power or discretion to consider the ground of newly discovered evidence. The order denying the motion states that National Elev. Co. v. Great N. Ry. Co., 140 Minn. 382, 168 N. W. 134; Ex parte Fuller, 182 U. S. 562, 21 Sup. Ct. 871, 45 L. Ed. 1230. A party defeated on appeal is not required to ask that the mandate give him leave to move for a new trial upon the ground of newly discovered evidence. Thus, in Archer v. Whitten, 117 Minn. 122, 134 N. W. 50S, Justice Bunn said: "We are asked to remand this case, with permission to defendant to move the trial court for a new trial on the ground of new evidence discovered since the appeal was taken. The whole matter of leave to make such motion, as well as its decision, rests with the trial court." [4] 4. On appeal from the order denying its motion for a new trial the defendant may have reviewed the error of the court in refusing to consider its motion so far as based upon newly discovered evidence. The defendant had a right to present its motion. The court declined to consider it upon the ground that it was without power or discretion. In this it was in error. The error inheres in the order and is reviewable on an appeal from it. Ashton v. Thompson, 28 Minn. 330, 9 N. W. 876; Leonard v. Green, 30 Minn. 496, 16 N. W. 399; Seibert v. Minne |