
    36 N. Y. 15-Distinguished, 14 Vr. (N. J.) 47. Followed, 52 How. 370, 371; 2 Redf. 438.
    Sarah L. Cooke, an infant, etc., Respondent, v. Samuel M. Meeker and William Conselyea, Appellants.
    The provisions of the Revised Státutés (2 R. S., p." 90, § 43) is in affirmance of the doctrines of the common law, and hás not changéd the rule as to the . time when interest on legacies begins to run.- • •
    Where an annuity is given, if by implication from the terms of the instrument the legacy be given for support, interest commences immediately from the death of the testator.
    It is not essential that the amount of the legacy shall-' be clearly known at the time' of the testator’s death. .....
    Where a sum is left in trust with direction that the interest and income be applied to the use of a person, such person is entitled to interest from the death of the testator.
    
      J. H. Reynolds, for the appellants.
    
      T. C. Pinckney, for the respondent.
   Davies, Ch. J.

The appellants "were constituted the exec-tutors of-the last , will and testament of Joseph Conselyea, deceased, and separate trustees of certain sums given in and by the will for the use of certain beneficiaries therein named.

-By the fifth clause. of his will the testator gave and bequeathed to his son, William Conselyea, one of the appellants, the sum of five thousand dollars upon trust, to invest the sum upon bond and mortgage, and apply the interest and income thereof to the use of his grandson, Joseph Cooke, during his natural life.

By the sixth clause of the will the testator gave and' bequeathed to the appellant Méeker, the sum of three thousand dollars upon trust, to invest the sum on -bond and mortgage, and apply the interest and income thereof to the use of his granddaughter, Ann Cooke, during her natural life; and by the' seventh clause of the will the testator gave and bequeathed the further sum of three thousand dollars' upon trust, to invest the same on bond and mortgage, and apply the interest and income thereof to the use* of-his granddaughter, Sarah Cóoke, the plaintiff herein, during her natural life. The testator declared in and by his will, that in case any claim or demand should be presentpd and allowed against his estate in favor of Dr. Chauncey L. Cooke, that the same should be paid ratably out of the principal of the several sums given and bequeathed to the said Conselyea and Meeker, respectively, in trust for the use, benefit and behoof of the children of the said Chauncey L. Cooke; all the rest, residue and remainder of his estate, real and personal, he gave to his ' son, William Conselyea. He authorized and empowered his executors to pay and discharge the several legacies' and bequests made in his will, or any or either of them, by transferring and delivering to the several legatees such bonds and mortgages belonging to his estate, to be selected by his executors, as might amount either severally or collectively to the legacy paid off.

In addition, the following facts were found by the court, which tried the case without a jury: That the testator died on the 10th of October, 1856, and that letters testamentary were issued to the defendants on the 20th of December in that year". That the testator left bonds and mortgages amounting to the sum of $39,121, and that they were drawing interest at the time of. the testator’s death. That the amount of the legacies and bequests was $31,000, given by the will. That there were no debts against the estate, except the demand of Dr. Cooke, mentioned in the will. That the estate was ample to pay all legacies. That there was a large • real and personal estate drawing interest. That the executors took possession and control of said estate from the time of the testator’s death. That the bonds and mortgages set apart for the payment of these'bequests were parts of the estate left by the said testator and were drawing interest at and from the time of the testator’s death. That on the third day of June, 1857, Doctor Cooke presented to the executors a claim against the testator, duly verified, amounting to $426, which was afterward allowed by them and paid to him on the 19th of December, 1857. That by the terms of this will three-elevenths of this claim, amounting to the sum of $116.18, was directed to be paid out of the principal sum of $3,000 bequeathed to the use of the plaintiff.

That on the 19th of December, 1857, the defendant Meeker received from the executors, for the use of the plaintiff and her sister Ann for life, the sum of $5,767.64, of which $5,691 was in mortgages, and $76.64 in cash. The plaintiff claimed the interest on said sum of $3,000 from the time of the death of the testator, and the defendants insisting that she was only entitled to the interest and income thereof from the 19th day of ■ December, 1857. The judge, at Special Term, held that the money bequeathed to the use of the plaintiff was a legacy, and was not payable until the expiration of one year from the granting of letters testamentary, and. that the plaintiff was not entitled to interest thereon prior to December 20, 1857. Judgment was entered, dismissing the complaint, and, on appeal, the General Term reversed the judgment, and ordered a new trial. From this order the defendants have appealed to this court, and stipulate, that if the order appealed from is affirmed, that judgment absolute shall be rendered against them.

There does not appear to be much difficulty in adjusting the rights of the parties, and the defendants would have been held blameless if they had acquiesced in the judgment of the General Term of the. Supreme Court, that the plaintiff was entitled to the income of the sum set apart by the testator for her support and maintenance, from the time of the death of the testator. The amount in controversy hardly justified them in subjecting the plaintiff, or the estate-they represent, to the delay and expense of an appeal to this court.

A bare reading of the will shows that the testator had two classes of beneficiaries in his mind: one to whom he intended to give absolute legacies; and the other, those for whose support and maintenance he intended to provide a fund, for which purpose the interest and income thereof were to be applied.

In the former class, was the bequest of the sum of $6,000 to his wife; .the sum of $2,000 each to the two children of his son William; the sum of $3,000 each to his two grandchildren, Anna S. Baker and Micajah B. Pinckney. In the latter class, is the bequest of the sum of $4,000, the interest and income of which was to be paid to his wife during her natural life; the sum of $5,000, the interest and income of which was to be paid to his daughter Maria during her. natural life; the sum of $5,000, the interest and income of which was to be applied to the use of his grandson, Joseph Cooke, during his natural life; the- sum of $3,000, the interest and income of which was to be applied to the use of his granddaughter, Ann Cooke, during her natural life; and the sum of $3,000 the interest and income of which was to- be applied to the use of his granddaughter, Sarah Cooke, this plaintiff, during her natural life.

By the provisions of the Bevised Statutes, no legacies are to be paid until after the expiration of one year from the time of granting letters testamentary, unless the same are directed by the will to be sooner paid: (2 R. S., p. 90, § 43.) This is an affirmance of the doctrine of the common law, and has not changed the rule as to the time when interest on legacies begins to run. (3 Bradf., 364.) At common law, the general rule is that interest upon a legacy is payable only at the expiration of a year from the testator’s death. (Toller on Ex., 324; Bradner v. Faulkner, 12 N. Y., 472.) If, however, an annuity be given, or if by implication from the terms of the instrument,, the legacy be given for maintenance and support, it shall commence immediately from the death of the testator, and consequently the first payment shall be made at the expiration of a year next after that event. (Toller on Ex., 324; Bradner v. Faulkner, ubi supra; 6 Vesey, 539; 6 Paige, 300.)

A learned author on the duties of executors (2 Williams on Ex’rs, 1288), says: This rule as to the payment of interest is subject to an exception, in case where the testator, being a parent or stands i/n loco prentis to the legatee; citing Ackerly v. Vernon (1 P. Wms., 783); Hill v. Hill (3 Ves. & B., 183); Miles v. Roberts (1 Russ. & M., 555); Leslie v. Leslie (Cas. Temp. Sugd., 4 Lloyd & Goold’s Rep.); Rogers v. Loutler (2 Kern., 598); Wilson v. Maddison (2 Y. & C. Ch., 372); Russell v. Dickson (2 Dru. & W. 133). For then whether the legacy be vested or contingent, if the legatee be not an adult, interest on the legacy shall be allowed as a maintenance from the time of the death of the testator if there is no other provision for that purpose. (Harvey v. Harvey, 2 P. Wins., 21; Incledone v. Northcote, 3 Atk., 438; Chambers v. Goodwin, 11 Ves., 2; Brown v. Temberly, 3 Russ. Ch., 263.) And even though the will should contain an express direction that the interest should accumulate. (Mole v. Mole, 1 Dick., 310; McDermott v. Kealey, 3 Russ. Ch., 264, note; Wynch v. Wynch, 1 Cox, 433 ; Donovan v. Needham, 9 Beavan, 164; Rudge v. Wiswall, 12 id., 357; In re Rouse estate, 9 Hare, 649.) In Mills v. Roberts (supra) the testator gave legacies to be paid to two minor children, provided they attained the age of twenty-one years; and the question was whether they were entitled to interest on their legacies of £10,000 each for their maintenance and education during their minorities; and he also gave a legacy to one George Francis Stuart, a minor, for his sole use and disposal, provided he attained the age of twenty-one. The master of the rolls said, the testator appoints two gentlemen to be trustees and guardians of these children, and requests them to attend to their education. And the case of Brainton v. Wilkinson is an authority directly in point — that they are entitled to the interest of the sums given to them until they attain the age of twenty-one, or die under that age. The same principles apply to the legacy to George Francis Stuart. This is a strong case, showing the extent to which the Court of Chancery in England has carried the doctrine of applying the income or interest of a legacy payable at a future period, given to a minor for its maintenance and education, even before the time arrives when the legacy is payable.

The weight of authority, undoubtedly, now is in favor of allowing the payment of annuities or incomes to commence at the testator’s death. The chancellor assumes that in Craig v. Craig (3 Barb. Ch.), referring to Gibson v. Bott (7 Ves., 96); Fearness v. Young (9 id., 553); Rebecca Owing's case (1 Bland. Ch., 296). The case of Angerstein v. Martin (Turn. & Russ, 232) came before Lord Eldon in 1823. The-testator in that case devised his freehold estates to J. Anger-stein for life, with remainder to his children in strict settlement ; and, as to his residuary personal estate, he bequeathed the same to trustees, to be invested in the purchase of lands, to be settled in the same manner, with authority to invest the fund in stocks, etc., until the estates could be purchased; the interest or income to go to the same person or persons to whom the rents of the estate would go if the purchase had been made. The'tenant for life filed his bill within the yea/r after the testator’s death, for the purpose of having the question decided whether he was entitled to the annual interest of the clear residue of the personal estate from the testator’s death, - or whether the amount of such interest for the first year was to form a part of the capital of the general residue, and which was to be added to the same and invested. And upon a review of all the previous cases it was decreed that the interest, from the death of the testator, belonged to the tenant for life, and was not to be added to the residue for the benefit of those who were entitled to the estates in remainder in the property to be purchased. And in the case of Hewitt v. Morris, which came before Lord Eld on a few months afterward (Turn. & Buss, 241), the testator directed his executors to invest the residue of his estate, after payment of debts and legacies, in the funds or upon securities, the interest to be paid to Angerstein for life, and after his death, the principal to be held upon trust for his children. The tenant for life was held to be entitled to interest accruing within the year next after the testator’s death, upon funds in which the testator’s property stood invested at the time of his death, and which were not required for the payment of debts and legacies. And it is to be observed that in each of these cases, the interest and income were decreed to commence before the exact amount of the principaVfund was ascertained. (See also Bickford v. Tobin, 1 Ves., 308; Hill v. Hill, 3 Vesey & Beames, 183.)

Chancellor Walworth, in Williamson v. Williamson (6 Paige, 304), after a citation and review of the authorities, observes that “ the result of the English cases appears to be, and I have not been able to find any in this country establishing a different principle, that in the bequest of a life estate in a residuary fund and where no time is prescribed in the will for the commencement of the interest or the enjoyment of the use or income .of such residue, the legatee is entitled to the interest or income of the clear residue, as afterward ascertained, to be computed from the time of the death of the testator. All the cases which appear to conflict with this rule, except the two decided by Sir John Leach, which are no longer to be considered as authority, will be found to be cases in which the testator had directed one species of property to be converted into another, or the residuary fund to be invested in a particular manner, and had then given a life estate in the fund as thus converted or invested. In such cases it appears to be consistent with the will of the testator to consider the life interest as commencing when the conversion takes place, or the investment is made, either within the year or at the expiration of that time. But as a year is considered a reasonable time for the executor to comply with the testator’s directions as to the conversion or investment, the legatee for life cannot be kept out of the interest or income beyond that period. In the case under consideration there is no direction for a conversion of the fund, or for the investment thereof in any particular manner, before the right of the widow to the use thereof for life was to commence, and as it appeared that a great portion of the personal estate was in bonds and mortgages and other ■securities, which were drawing interest at the death of the testator, there is no good reason for depriving the widow of the use of the residuary estate for an entire year.” These remarks apply with peculiar force to the case now under consideration. ‘ There, then, is no direction for a conversion, but a direction in effect to transfer the bonds and mortgages of the testator, to the amount of the several bequests, in satisfaction of them. These securities were all bearing interest, and it "is manifest that it was the intent of the testator that these several beneficiaries should have the interest and income of the amounts set apart for them, for their maintenance and education. And the fact that the ■ precise amount of the fund was not ascertained until the expiration of a year from the death of the testator, furnishes no reason why the interest thereon should not be paid to the beneficiary before that time.

In re Williams (12 Legal Observer, 179) the surrogate of Kings county allowed interest to an adopted daughter of the testator on a sum of $5,000, directed to be invested, and the interest to be paid to her during life, on the proportionate share of her legacy from the death of the testator, but he refused to allow interest from the same period, to the widow of the testator, upon a legacy to be invested, and the interest thereof paid to her. In matter of Fish’s estate (19 Abb. Pr., 209), the surrogate of Sew York, in 1865, decided that annuities or incomes' and interests upon sums directed to be invested upon trust to pay over interest or income, commence to run from the death of the testator. The case of Hillyard's estate (5 Watts & Serg., 30), is quite in point. There the bequest was to the executor in trust to put at interest a certain sum, and apply the interest and income thereof to the sister of the testator. The court held that she was entitled to the interest upon the sum so held in trust, during the first year from the death of the testator. It is a significant fact, that the statute law of Pennsylvania, in relation to the payment of legacies, conforms to that of this State, directing their payment at the expiration of one year from the death of the testator. See also for same doctrine Eyre v. Golding (5 Binn., 472).

The authorities would seem abundant, therefore, to sustain the doctrine, that when a sum is left in trust, with a direction that the interest and income should be applied to the use of a person, such person is entitled to the interest thereof from the date of the testator’s death. Especially is this so, when, as in the will under consideration, it appears clearly to have been the intent of the testator that the legacy should be paid by a transfer of bonds and mortgages, bearing interest at the time of his death. All the authorities and dicta concur, that, under such circumstances, the accruing interest upon the securities, from the time of the death of the testator, should go for the use and maintenance of the beneficiary. It follows from these considerations, that the order of the General Term, granting a new trial,' should be affirmed, with costs, and in pursuance of the defendant’s stipulation. Judgment absolute should be rendered for the plaintiff, and the Supreme Court is directed to ascertain the amount due to the plaintiff on the principle of this opinion and render judgment therefor, with costs.

Bockes, J.

At common law, when a legacy was given without specifying any time of payment, it vested in the legatee on the death of the testator, though not payable until one year afterward. The legacy vested on the decease of the testator, at which time the will was deemed to speak or take effect. By the statute (2 R. S., 90, § 43) legacies are not payable until after the expiration of one year from the time of granting letters, unless directed by the will to be sooner paid, and they will not draw interest until legally payable. (12 N. Y., 472.) Therefore, interest is not payable on a legacy until a year from the granting of letters, unless it be otherwise directed in the will, either expressly or by fair implication. In this case no express direction is given, but, according to well-settled rules of construction, direction is given by just and fair inference. The testator gave to the defendant Meeker three thousand dollars in trust, to invest the same on bond and mortgage, and to apply the interest and income thereof to the use of the plaintiff during her life. The plaintiff was a minor, and, so far as the case shows, was without other provision for her support and maintenance. The testator’s personal estate exceeded the aggregate of all the legacies, and was well invested on bonds and mortgages drawing interest; and he gave authority to his executors to pay and discharge the legacies and bequests made in the will by transferring and delivering bonds and mortgages .belonging to his estate to the legatees. Certainly there was nothing in the will, or in the circumstances surrounding the case, rendering it impossible or improbable that it was the intention of the testator that the legatee or beneficiary, under the trust, should not have the income, from the fund named by him, from the time of his decease. On the other hand, the inference is fair that he so intended. It is apparent that the bequest was intended for the support and maintenance of the plaintiff, who was an infant; and there is no reason, nor is it probable, that he intended to postpone the benefit conferred for any period after his decease. In case of a legacy to a widow, in lieu.of dower, it draws interest from the death of the testator when he has made no other prevision for her support during the first year after his death (6 Paige, 298); and so in the case of a legacy to a child, whose support and maintenance are not otherwise provided for. (Allen, 490.) The construction claimed for this will by the plaintiff is sustained by numerous authorities, both in England and this country. (7 Vesey, 96; 9 id., 553; 1 Bland’s Oh., 296 ; 3 Barb. Ch., 76; 6 Paige, 298; 5 Watts & Serg., 30.) •

The last case cited is much like the one in hand. The testator gave to his executors a sum in trust to be put at interest, and required them to apply the interest and income to the use of his sister during her natural life. It was held that she was entitled to interest on the sum from the death of the testator. So in Gibson v. Bott (7 Vesey, 96), the testator placed the residue of his property in trust in the hands of Ms executors and directed them to keep it invested, and to pay the interest and dividends to Ms two daughters and their assigns for life. It was held that they were entitled to the interest thereon from the testator’s decease. The case under consideration is stronger in favor of the plaintiff’s claim than are some of those cited, in which it was held that the beneficiary under the will was entitled to interest from the death of the testator. Here all or nearly all the circumstances exist and are combined, which in the cases cited were severally held to control the construction of the will and to indicate plainly the intent of the testator. The estate was much more than sufficient to satisfy all the legacies. ' It was well invested on bonds and mortgages drawing interest at the testator’s decease. The executors were authorized to transfer existing securities in satisfaction of the legacies. One of the executors was made the trustee to take and hold the trust fund — thus no new or especial investment was necessary. The beneficiary was an infant, with no other provision for her support or means of support, so far as the case discloses. In view of these facts, and.in accordance with well settled rules of construction in analogous cases, it must be held that the plaintiff' is entitled to interest on the trust fund from the decease of the testator.

The order of the Supreme Court granting a new trial was right, and must be affirmed; and, under the stipulation, judgment final must be rendered in favor of the plaintiff.

The case, however, must go back to the Special Term for the purpose of fixing the amount for which judgment is to be entered.

See leading opinion by Davies, J.

All concur in opinions of Davies and Bookes,. JJ., except Grover, J., who dissented, and Porter, J., who expressed no opinion.

Judgment affirmed.  