
    Bank of Niagara, Respondent, v. Ashton Buchanan Talbot, Individually and as Sole Executor, etc., of Calista M. Talbot, Deceased, and Others, Defendants, Impleaded with Almira Winchester and Others, Appellants.
    Fourth Department,
    January 3, 1906.
    Will—direction to executor to pay legacies after six years—when interest on such legacies begins — gift of income of sum named. .
    When a will gives the executor power to collect the income of real estate and to invest and reinvest the same, with full power of sale at any time within six years after, the decease of the testatrix of any and all real estate and personal property and to invest and reinvest the proceeds of such sales, and directs that “ not later than the expiration of six years after my decease according to the best judgment of my executor my property shall he converted into money and my estate fully settled and the distributive shares or legacies paid over to the person or persons entitled thereto,” such legacies do not become due until six years after the death of the testatrix, and, hence, do not bear interest until such period has elapsed.
    But when such will gives a certain legatee during her natural life the interest on the sum o'f §6,000 and bequeaths the principal sum at her death to her children, it is a gift of the interest on said sum and not an annuity, and the legatee is entitled to the income therefrom from the death of the testatrix, although the executor has six years in which to set apart said §6,000 as a trust estate.
    Appeal by the defendants, Almira Winchester and others, from portions of an order of the County Court of Erie county, éntered in the office of the clerk of said county on the 19th day of April, 1905, as amended by an order of said County Court, entered'in said clerk’s office on the 17th day of May, 1905, confirming the report of a referee.
    
      J. Boardman Scovell, Simon Fleischmann and William li.Pooley, for the appellants.
    
      Tracy G. Becker and Lincoln A. Groat, for the respondent.
   Nash, J.:

The time of payment of all of the, legacies to the appellants, except' Helen Morehouse Kennedy, and, therefore, the time from which they bear interest, is fixed and determined by the testatrix in .'the 37th paragraph of- her will. It gave to the executor the power and authority to collect the rents, issues and profits of her real estate and to invest and reinvest the same; also full power of sale of any and all of her real estate and personal property in his discretion at any time within six years after her decease and power to invest and reinvest the proceeds of sitch sale so far as required by the provisions of the will, and further provided, “but it is my will, and I hereby direct that not later than the expiration of six years after my decease,' according to the best judgment of my executor, my property shall be converted into money and my estate fully settled and the distributive shares of legacies paid over to the person or persons entitled thereto in the order in which their names appear in this instrument.”

Thus it was provided that the legacies did not by the terms of the will become due and-payable until six years after .the death, of the testatrix, and; Consequently, did not bear interest until after that period of time had elapsed.. (Thorn v. Garner, 113 N. Y. 198 ; Van Rensselaer v. Van Rensselaer, Id. 207 ; Wheeler v. Ruthven, 74 id. 428.) In Thorn v. Garner the testator bequeathed to his son $1,000,000 to be’paid within eighteen months after the testator’s death. It was held that the son was not entitled to any interest upon his legacy previous to the expiration of the time fixed for its payment. In the Van Rensselaer case the language of the will was : “ I hereby give and bequeath to my sister Elizabeth the sum of ten thousand dollars, to be paid by. my executors when it . shall be convenient for them, without regard to the time fixed by law, out of the moneys derived from the sale of the Van Sellaick , farm left me by my brother Courtlandt, or otherwise, if it shall, seem best to them.” It was held that the legatee was entitled to interest from the time when sufficient of the proceeds of the farm sales had been realized to pay her legacy, In Wheeler v. Ruthven it is held that “ the rule that a legacy is payable one year after the testator’s death and bears interest from that time, only applies in the absence of a direction in the will, or other decisive indication therein, which, interpreted in the light of the surrounding circumstances, shows a different intention on the part of the testator.” By the will the testatrix gave twenty-one general legacies and directed that in case her estate was insufficient to pay all, the first fifteen legacies should be first paid. The sole estate of the testatrix was a residuary interest in certain real and personal estate in wffiicli her mother had a life interest. It was held that the testatrix intended that the legacies were to be paid when, by the death of the life tenant, her estate should vest in possession, and that they only bore interest from that time. Within the principle of these cases the legacies to the appellants, other than Helen Morehouse Kennedy, did not bear interest until the expiration of six years from the death of the testatrix.

The 17tli paragraph of the will gives to Helen Morehouse Kennedy during her natural life the interest on the sum of $6,000, and bequeaths the principal sum at her death to her children as therein provided. It is a gift of the interest upon $6,000 set apart from the estate of the testatrix and invested, and not an annuity. (Matter of Dewey, 153 N. Y. 63.)

The executor had the same time in which to execute the power of sale for the purpose of setting apart the $6,000 to be held in trust for the legatee for life as to provide for the payment df the general legacies. But in the absence of specific directions as-to the time when the interest would become .payable thereon, the rule that where the income of an estate or a designated portion thereof is given to a legatee for life, the legatee -becomes entitled to whatever income accrues thereon from and after the death of the testatrix, unless there is some provision, in the will expressing a contrary intent (Matter of Stanfield, 135 N. Y. 292), is applicable.

The provisions of the 37th paragraph of the will fixed the time of payment of only the distributive shares or legacies to b'e paid over to the person or persons entitled thereto, and is not applicable to the trust created for the beneficiaries, Helen Morehouse Kennedy 'and her children, except as to the time when the $6,000 should be set apart and invested for her use. Until set apart she was entitled to the income of so much of the estate as was represented by the $6,000, the proportionate amount which 'the income of $6,000 in value bore to the income of the whole estate, the personal of which is ascertained to have been $6,018.03 and the real estate as stipulated $300,000. The computation by the referee of the amount - of income of the $6,000 for the period of six years from the death of the testatrix was made on this basis, and, as corrected by the stipulation of the parties, confirmed- by the order of the County Court.

The order of the County Court should be affirmed.

' All concurred.

. Order affirmed, with ten dollars costs and disbursements.  