
    JOHN D. BARROW, REBECCA H. BARROW, ELIZABETH BARROW and GEORGE BARROW, Plaintiffs, v. HENRY BARROW and EDWARD WOOD, Executors of the Last Will and Testament of EDMUND H. PRIOR, Deceased, Defendants.
    
      Will — when the income of a trust fund created thereby is payable from the time of the death of the testatm'.
    
    A testator, by bis will, provided as follows: “I do give and bequeath to my executors hereinafter named, and the survivor of them, the sum of $60,000, in trust, that they invest the same in good securities, and that until the death of the survivor of my nephew, John D. Barrow, and niece, Mary L. Barrow, they apply the net interest and income therefrom to the use of my nephews and nieces, children of my sister, Elizabeth M. Barrow, as follows, namely: To John D. Barrow, Rebecca H. Barrow, Elizabeth Barrow, George Barrow and Mary L. Barrow, each one equal share annually, and every year, in half-yearly payments.”
    The testator’s estate was inventoried at the sum of $461,575, the assets of which consisted of bank stocks, cotton-mill stocks, gas-light stocks, etc., interest-bearing securities, none of which were such as the law permits trustees to invest in.
    
      Held, that the income of the $60,000 was payable to the beneficiaries named in the will from the date of the death of the testator.
    SUBMISSION of a controversy, without action, under section 1279 of the Code of Civil Procedure. On the l'3th day of December, 1819, Edmund H. Prior made his last will and testament wherein he. appointed Henry Barrow and Edward Wood his executors. He died in Westchester county October 16, 1888, and his will was probated on January 18,1889, andjhe executors qualified and entered upon the discharge of their duties as such executors. The plaintiffs claimed that under the will of Edmund H. Prior, deceased, the net interest or income on the amount given to the executors in trust, and directed to be invested by them for their benefit, commenced from the day of the death of the testator that is, October 16,1888, and that they were, therefore, entitled to income for the first year subsequent to said date. To the contrary thereof, the executors claimed that the income or interest did not commence until one year subsequent to said death of said testator, and that the plaintiffs were not entitled to any interest for the first year after the death of the testator.
    The plaintiffs claimed under the following clause of the will: C! I do give and bequeath to my executors hereinafter named, an d the survivor of them the sum of sixty thousand dollars, in trust, that they invest the same in good securities, and that until the death of the survivor of my nephew John D. Barrow and niece Mary L. Barrow, they apply the net interest and income therefrom to the use of my nephews and nieces, children of my sister Elizabeth M. Barrow, as follows, viz.: To John D. Barrow, Rebecca IT. Barrow, Elizabeth Barrow, George Barrow and Mary L. Barrow, each one equal share annually, and every year in half-yearly payments, and should any of my said nephews and nieces die before the death of said survivor, leaving lawful issue him or her surviving, then the share of the income to which the said deceased nephew or niece would be entitled, if living, shall be paid to such issue, if one, solely; if more than one jointly and equally; but should there be no such lawful issue surviving, then the income of such share shall be divided among the survivors of my said nephews and nieces and their issue, so that each one of my said nephews and nieces shall take one share, and the issue of any deceased one shall take the share of the parent, and upon 'the death of the survivor of my said nephew and niece, then the said sum of sixty thousand dollars is to fall into my residuary estate and be disposed of as hereinafter mentioned.”
    In the case submitted it appeared “ that the estate left by the said Edmund H. Prior was inventoried at the sum of $461,575, that the assets owned by said testator at the time of his decease, and -which passed to his executors, and which they took under their control upon the testator’s death, consisted of bank stocks, cotton mill stocks, gas-light company stocks, railroad bonds and interest-bearing notes; that substantially the whole of said estate was invested at the death of the testator in securities hearing interest, and together averaging five per cent per annum; and that the said estate in the executors’ hands now amounts to about $498,000. That none of ■said estate was at testator’s death invested in such securities as the law permits trustees to invest in, and that the amounts bequeathed to said executors in trust as aforesaid has not been set apart and was at no time previous to the 16th day of October, 1889, invested by the said executors. * * * That the said testator at the time of his decease was substantially free from debt.”
    The submission further stated : “ The question submitted to the ■court upon this case is as follows: 1. Tinder the will of Edmund H. Prior, deceased, and the above statement of facts, are said -John D. Barrow, Rebecca H. Barrow, Elizabeth Barrow and George Barrow entitled to the income on said trust legacy from the time of the death of said Edmund II. Prior? If this question is answered in the affirmative, then judgment is to be rendered against the said executors, and to be paid out of said estate for the amount claimed, $3,429. If answered in the'negative, judgment is to be rendered in favor of the executors. That this submission be filed in the clerk’s office of Onondaga county.”
    
      George Barrow, for the plaintiffs.
    
      Wilson M. Powell, for the defendants.
   Hardin, P. J.:

The language of the will before us is quite unlike that found in the will that was the subject of construction in Bradner v. Faulkner (12 N. Y., 472). In that case “the sum of $16,000 to be paid to her by my executors out of my personal estate as soon as the same can be collected after my decease ” was the language under which Mrs. Faulkner sought to recover interest from the decease of the testator. It was said by the court that the language used, as well as the other circumstances appearing in the case, did not indicate an intent on the part of the testator that the legatee should receive interest from the time of the death of the testator, and that to allow such interest it must appear to be the intent of the testator, either by express direction or by an implication from the provisions of the instrument, which shall be equivalent to such direction.” In the will before us the provision is for a gift of $60,000 to the executors in trust, and they are directed to “ apply the net interest and income therefrom to the use of ” the nephews and nieces, each one equal share annually, and every year in half-yearly payments.” It may he observed that the gift or bequest took effect immediately upon the death of the testator, and if we give a liberal construction to the words every year in half-yearly payments,” we may assume that they are sufficiently broad to include the period immediately following the death of the testator. If we assume that the bequest took effect upon the death of the testator, then the words apply the net interest and income therefrom to the use of my nephews and nieces ” would receive a reasonable construction if they were considered sufficient to carry to the beneficiaries any accumulation of interest or income upon that part of the estate of the testator set apart in trust for them.

Some significance may be given to the circumstance that the • assets of the estate out of which the trust funds w.ere to come, or in which they were invested at the time of the death of the testator, bore interest, and were yielding an income at the time of the death of the testator according to the language of the submission before us. It appears in the submission of the case that the testator left only $4,000 of real estate, and “ that the said testator at the time of his decease was substantially free from debt,” and it also appears that. “ substantially the whole of said estate was invested at the death of the testator in securities bearing interest.” These circumstances, are somewhat helpful to the position taken by the plaintiffs.

In Cooke v. Meeker (42 Barb., 533), it was held, viz.: “ Where a, sum of money is bequeathed to executors, to be put out at interest, and to pay over the income, the person for whom the provision is made is entitled to interest on the same from the death of the testator, provided a sufficient amount remains, after deducting debts, and other legacies.” In the case before us it is apparent that there were sufficient assets, after paying the debts and other legacies, to. meet the bequest mentioned in tbe clause of tbe will under consideration. In the opinion in tbat court delivered by Clerice, J.,. be said: “ Tbe weight of authority is in favor of allowing tbe payment of annuities or incomes to commence at tbe testator’s death.”' He adds a citation and considers numerous authorities bearing upon tbe subject, and says, viz.: “ In the case of Hilyard’s Estate (5 Watts & Serg., 30), tbe bequest was to tbe executors in trust, to put at. interest a certain amount, and apply tbe interest and income thereof, from time to time, unto tbe testator’s sister. The court held that she was entitled to tbe interest during tbe first year from tbe death of tbe testator.” This case passed to the Court of Appeals, and tbe decision thereof is reported in 36 New York, 15, andthe decision of the Supreme Court was affirmed. In tbe course- of tbe opinion delivered in tbe Court of Appeals, Bockes, J., referring to tbe case of Hilyard’s Estate (5 Watts & Serg., 30), says : “ Tbe last case cited is much like tbe one in band. The testator gave to bis executors a. sum in trust to be put at interest, and required them to apply tbe interest and income to tbe use of bis sister during her natural life.. It was held tbat she was entitled to interest on tbe sum from tbe death of the testator. So in Gibson v. Bott (7 Vesey, 96) tbe testator placed the residue of bis property in trust in tbe bands of bis. executors, and directed them to keep it invested, and to pay tbe interest and dividends to bis two daughters and their assigns for life. It was held tbat they were entitled to tbe interest thereon from the testator’s decease.” Surrogate Calvin followed the decisions in 'the case just referred to in disposing of a similar question in tbe Matter of the Estate of Edward Lynch (52 How., 367); and in delivering bis opinion in tbat case he made quite an extensive-examination of the authorities bearing upon tbe question.

In deciding Pierce v. Chamberlain (41 How., 501), Daniels, J., followed tbe doctrine of Cooke v. Meeker (supra); and the same-learned judge, in delivering tbe opinion of this court in tbe first, department, in Powers v. Powers (49 Hun, 219; 16 N. Y. St. Rep., 770) followed Cooke v. Meeker; and in alluding ,to tbe rule laid down said: “ No authority lias been found, neither is there any probability tbat .any can be, in any manner modifying or changing this rule.”

In delivering tbe opinion in Rodman v. Fincke (68 N. Y., 246), Rapallo, J., says, viz. : “ In some eases Where the amount of tlie fund cannot be ascertained till a period after the testator’s death, but the bequest is of the interest on such fund during the life of the legatee, it has been held that to carry out tlie intention of the testator the legatee for life must be allowed interest on the fund as afterwards ascertained, to be computed from the death of the testator. (Williamson v. Williamson, 6 Paige, 298; Gibson v. Bott, 7 Vesey, 89.) This rule is especially equitable when the fund has all the time been yielding income in the hands of the executors. (See Hilyard’s Estate, 5 Watts & Serg., 30.) Por these reasons we think that the grandchildren are entitled to interest on the deficiency demonstrated by the sale, from the time ■of the death of the testator.”

Surrogate Tuciceb, in the Matter of Fish’s Estate (19 Abb. Pr., 212), said: “Annuities or incomes, and interest upon sums directed to be invested upon trust to pay over interest or income, commence to run from the death of the testator.” Por that doctrine he cited the opinion of the Supreme Court in Cooke v. Meeker (42 Barb., 533). The doctrine of the cases to which we have referred was ¡stated approvingly by Surrogate Bergen in Bullard v. Benson (1 Dem., 494).

Surrogate Rollins, in Nahmens v. Copely (2 Dem., 257), indulges in some doubting criticism of the doctrine of Cooke v. Meeker (supra), but in closing his opinion lie applies the principle of that case to the question before him, as he says : “Nevertheless, in view of the peculiar language of this testator’s will, I have decided to allow interest from his death upon the legacy under consideration. He expressly declares that the provision for his grandchild shall be for her ‘support and education.’ This feature seems to me to be one of controlling importance, and to justify the claim urged by the special guardian in her behalf.” So far as the case is •entitled to respect as an authority, it supports the doctrine of the •cases already cited. The same remark may be made of the opinion in Clark v. Butler (4 Dem., 379).

After carefully considering the language of the will and the cir•cumstances relating to the testator’s estate, and the authorities to which we have referred, we are of the opinion that the plaintiffs ■are entitled to receive the net interest and income upon $60,000, less the State tax from the day of the death of the testator, and that, according to the terms of the submission, judgment should be; rendered against the said executors, and to be paid out of said estate for the amount claimed, $3,429.

.Martin and Merwin, JJ., concurred.

Judgment directed in favor of the plaintiffs for $3,429, against, the executors, payable out of the estate, with costs.  