
    In the Matter of the Estate of Giacomo Principe, Deceased.
    Surrogate’s Court, Bronx County,
    February 25, 1938.
    
      Vincent N. Donatone, for Carmine Mottola, as administratrix, etc., of Angelina Mottola Principe, deceased, petitioner.
    Afoses & Singer [Felix A. Fishman of counsel], for the executor.
   Henderson, S.

In this proceeding to compel the payment of a legacy, the petitioner seeks interest at the rate of six per cent per annum from a date seven months after the issuance of letters of temporary administration. The executor contends that the legacy bears interest only from a date seven months after the issuance of letters testamentary and then only at the average rate of income earned by the estate which it alleges to be approximately two and one-half per cent. In January, 1938, it offered to pay the legacy with interest at that average rate from May 3, 1936.

Letters of temporary administration were issued on July 25, 1935, to the Public National Bank and Trust Company, to whom letters testamentary were issued on October 3, 1935.

The testator, who died June 1,1935, bequeathed to his widow the sum of $3,000, the legacy in question, and divided his residuary estate among certain nephews and nieces. The net estate was evaluated in two tax proceedings at over $51,000. The executor alleges that the net estate is now about $34,500. It now has $9,809.95 in cash, which it asserts is subject to a claim of approximately $1,700, an unpaid balance of $140 for the widow’s exemption and unpaid commissions and attorney’s fees of approximately $2,000 in the aggregate. The balance is more than sufficient to pay the legacy with interest.

A legacy has a definite due date, after which an action at law may be maintained for it, and from which it draws interest at the legal rate of six per cent per annum. (Matter of Barker, 186 App. Div. 317, 322; affd., in this respect, 230 N. Y. 364, 370, 379.) This legacy became due and payable at the expiration of seven months from the date when the letters of temporary administration were issued, and interest began to run from such due date. (Matter of McGowan, 124 N. Y. 526.) Except for statutory codifications and transpositions, the only material amendments to the statutes cited in the above authorities were the various changes of the period of administration from one year to seven months.

Application granted, with costs payable by the executor personally.

Settle decree directing payment of the legacy, with interest thereon at the rate of six per centum per annum from February 25, 1936.  