
    John B. Haight, as Executor, etc., of Underhill L. Purdy, Deceased, Appellant, Impleaded with Others, v. Samuel Pine and Others, Respondents.
    
      Interest — a legatee preventing the payment of his legacy is not entitled to interest — taxes and repairs paid by a wrongful possessor of land, but not insurance premiums, allowed to him.
    
    Where the payment of interest is not the subject of an express contract, a promise to pay it will be implied on default in the payment of a specific sum which one is entitled to receive from another. In such case, interest is in the nature of damages for the default.
    Where a legatee is chargeable with knowledge that the only fund provided for the payment of his legacy is to arise from the sale of certain land, and he wrongfully enters into possession of such land and prevents a sale thereof, he is not entitled to interest upon his legacy during the time that he thus prevents a sale of the land.
    In an action bx'ought against one who has been in the wrongful possession of land for an accounting of the rents and px'ofits thereof, the wrongdoer is xxot entitled to be allowed for moneys paid for insurance, as sxxch expenditure is beneficial neither to the ownei'S of the land nor to the land itself.
    He is, however, entitled to be allowed for moneys paid for taxes and necessary repairs, as the owners are only entitled to their actual damages, which are the net rents and profits of the land.
    Appeal *by the plaintiff, John B. Haight, as executor, etc., of Underhill L. Purdy, deceased, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the-23d day of April, 1896, upon the decision of the court rendered after a trial at the Westchester Special Term, as directs said John B. Haight, as executor, etc., of Underhill L. Purdy, deceased, to apply the proceeds arising from the sale of certain real estate mentioned in the judgment herein, or any portion thereof, in or upon the payment to Sullivan M. Pine, as administrator, etc., of John Pine, deceased, of interest upon the sum of $10,000, or any part thereof.
    Also, from so much of said judgment as allows to said Pine, as such administrator, the sum of $1,665, or any part thereof, for taxes, repairs or insurance upon the said premises.
    
      Frederick W. Sherman, for the appellant.
    
      Owen T. Coffin, for the respondents.
   Bradley, J.:

This action was commenced in July, 1895, for the purpose, as expressed in the prayer for relief, of obtaining judicial construction of the will of Sarah Purdy, deceased, so far as it related to the land in question, to require the defendants to account for the rents and profits of the premises and to obtain a direction for the sale thereof. The title to the land up to the time of her death was in Sarah Purdy, who died in 1876, leaving her last will and testament, which was admitted to probate and record in June of that year, and letters testamentary were issued to her surviving husband, Underhill L. Purdy. By it she gave and devised to him and to “ his heirs and assigns forever ” all her estate, real and personal (except some personal property bequeathed to another), subject to the charge upon such devise of a legacy of $10,000 given to her brother James Pine, which legacy she directed should be paid without interest, within one year after the decease of her husband, and she added that “ By the above provisions it is intended to give to my husband the use of ■ all my estate ” (with such exception) during his life. By another clause of the will she. empowered the executor to sell and convey the whole or any part of the real estate and to invest the moneys arising therefrom to the amount of $10,000, the interest on which was to be taken by her husband during his life, and within a year after his death the principal sum of $10,000 was to be paid to James Pine.

The devisee, Underhill L. Purdy, died in the year 1889, leaving his will, which was admitted to probate and letters testamentary were issued to the plaintiff Haight. By his will he directed that his personal qoroperty be sold and converted into money, and that to the amount so realized be added the proceeds, less $10,000, arising from the sale of the land, in conformity with the provision of the will of his deceased wife. It seems very clear that by the provisions of her will in that respect, Sarah Purdy devised the real estate to her husband in fee, charged only with the legacy to J ames Pine. This was so determined by the court in another action (Haight v. Pine, 3 App. Div. 434).

The trial court found that after the death of Underhill L. Purdy, and about the 3d day of August, 1889, James Pine, without the permission of the plaintiffs or any of them, wrongfully and forcibly entered into the possession of the land in question and remained in the sole possession and occupation thereof down to the time of his death, claiming to own it as the only heir of Sarah Purdy, deceased, and in violation of the provisions of her will. That in August, 1890, James Pine died intestate, leaving him surviving four children, the defendants, and letters of administration were issued to the defendant Sullivan H. Pine; that upon the death of his intestate he, in behalf of himself and the other heirs and next of kin of James Pine, entered into the possession of the premises and has continued in such possession and occupation thereof, claiming to own the same, in violation of the provisions of the will of Sarah Purdy, deceased, and in violation of those of the will of "Underhill L. Purdy, deceased; that James Pine and the defendants Pine and Porteous ever since the death of Underhill L. Purdy have prevented a sale of the said premises, and that the legacy of $10,000 to James Pine has not been paid by reason of the action of James Pine and those defendants.

The trial court also found that the land consists of seventy-five acres, of the value of $300 per acre; that the annual rental value during the year 1889, and down to the time of the decision was $375, and that James Pine and the defendants Pine and Porteous have expended $750 for repairs, $774.69 for taxes and $90 for insurance on the premises since the death of Underhill L. Purdy.

As conclusions of law the court, among other things, determined that the entry of James Pine and of the defendant Sullivan M. Pine and their possession of the premises were wrongful, unlawful and without right; that the premises be sold and the defendant administrator be paid from the proceeds $10,000, with interest after the first year, less the costs and $584.55, the excess of the value of the use over the amount so paid and for taxes arid repairs, to wit, $1,665.45. This sum included also the $90 for insurance. Judgment was directed accordingly, in which was expressed the allowance to the defendants for insurance, as well as interest, taxes and repairs.

The questions presented are whether the defendants were entitled to such allowances. The testatrix evidently contemplated that the legacy of $10,000 would be paid to James • Pine within a year after the death of hér husband, and she provided' for that time to do it without interest. By the sale of the premises within that time it may have been accomplished. When the payment of interest is not the subject of express contract, a promise to pay it will be implied and arise on default of payment of a specific sum of money to which one is entitled to receive from another, and it is in the nature of damages for such default. (Dana v. Fiedler, 12 N. Y. 40; Southern C. R. R. Co. v. Town of Moramia;, 61 Barb. 180.) From the expiration of the year after the death of the plaintiff’s testator the legatee, Pine, was presumptively entitled to interest on the legacy, and such was his legal right, unless by him the executor was denied the means and opportunity to pay the legacy in the manner contemplated by the will of the two testators. There may be causes which will suspend for a time the payment of a debt already due, and during such time relieve the person from liability for interest unpaid. Such may be the effect of the status of war or restraint by injunction or attachment — and in other ways excuse for such suspension and relief may be given by the creditor. (Prescott v. Parker, 4 Mass. 170; Gillespie v. The Mayor, 3 Edw. Ch. 512; Stevens v. Barringer, 13 Wend. 639; Wheelock v. Tanner, 39 N. Y. 504.)

The court has found that the legatee, and those who succeeded him in the right to the legacy and in the possession of the premises, prevented the sale of them, and that by reason of this action the legacy has not been paid. As the evidence upon which those conclusions of fact were reached is not before us they are entitled to the effect which they necessarily import. The legatee and his personal representatives and successors in interest were advised, by the terms of the will of Underhill L. Purdy, that the fund for the payment of the legacy was to be derived from the sale of the land and in no other manner, and by preventing the sale they denied to the executor of the will of Underhill L. Purdy the right to pay it, and, therefore, they were' not and are not entitled to the allowance of any interest upon the legacy.

Nor were the defendants entitled to be allowed the item of ninety dollars for insurance. It was in no sense beneficial to those having title to the premises and could not be available to them, nor was it beneficial to the land. (Faure v. Winans, Hopk. Ch. 283.)

A different question arises as to the allowance to the defendants for the expense for repairs and for taxes paid by them. When a person having possession of land is, by an outstanding title, required to surrender it to another, he may, if his occupancy has been in good faith, be allowed for permanent improvements made on the premises in abatement of the owner’s claim against him for rents and profits. This is an equitable defense. (Green v. Biddle, 8 Wheat. 1; Jackson v. Loomis, 4 Cow. 168; Wood v. Wood, 83 N. Y. 575; Sedgwick on Damages [5th ed.], *126, *127.) But while one who is not a tona fide occupant of land owned by another is not permitted to obtain affirmative relief by action to recover the expense of repairs made and for taxes on the premises paid by him, he is not wholly denied relief, by way of defense against the claim for gross rents and profits made against him. But upon the principle that even against a wrongdoer actual damages only can be recovered, he may recoup the reasonable expense incurred by him for necessary repairs so made and for such taxes paid, as in legal contemplation the owner has only been deprived of the residue, which constitutes the net rents and profits of the premises or value of the use, and covers the damages sustained by him. (Holmes v. Davis, 19 N. Y. 488; Miorray v. Gouverneur, 2 Johns. Cas. 438; Sands v. Codwise, 4 Johns. 536, 604; Loos v. Wilkinson, 113 N. Y. 485.) The allowance for the amount of such taxes so paid was properly made. They were not created by the defendants, but were assessed on the premises by public authority and the land may have been chargeable with them. And since the court was not required to find all the facts essential to the conclusions of law determined by its decision, it may be assumed that the allowance for the expense of repairs was warranted by the evidence.

It is unnecessary to consider the question whether or not, in view of the provisions of the will of Mrs. Purdy, there was any opportunity for James Pine to claim, in good faith, the right, as her heir, to enter and occupy the premises.

These views lead to the conclusion that the judgment should be reversed and a new trial granted, costs to abide the final award of costs, unless the defendants stipulate to reduce the amount allowed to them by a sum equal to that of the interest upon the legacy and the expenditure for insurance included in the allowance to the defendants; and in that event the judgment be so modified and afiirmed, without costs to any party.

All concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs, unless the defendants stipulate within twenty days to reduce the amount allowed to them by a sum equal to that of the interest upon the legacy and the expenditure for insurance included in the allowance ; if such stipulation is filed the judgment so modified is afiirmed, without costs.  