
    
      In re Stanfield’s Estate.
    
      (Supreme Court, General Term, First Department.
    
    May 13, 1892.)
    1. Wills—Trusts—When Income Becomes Payable.
    When a will gives a sum of money, after the payment of testator’s debts, to the executor, in trust to invest the same in a certain class of securities and pay the income over to the beneficiary for life, the beneficiary is entitled to the income derived from the fund from the date of testator’s death, and not merely from the expiration of one year after the issuance of letters on the estate. Cooke v. Meeker, 36 N. Y. 15, and Powers v. Powers, (Sup.) 1N. Y. Supp. 636, followed.
    2. Same—Rate of Interest to be Allowed.
    Where a certain amount of an estate consisting of personalty is directed by the: will to be invested by the executor, and the income to be paid over to beneficiaries named, and after the death of the testator, and before the fund is particularly set apart and invested, the estate does not earn the full legal rate of interest, it is within the discretion of the surrogate to allow the beneficiaries such rate of interest as he may deem proper, having reference tocthe total amount of income earned by the estate, and the appraised value of the estate.
    Appeal from surrogate’s court, Hew York county.
    Petitions by Hugh M. Stanfield and Henry E. Stanfield, respectively, as beneficiaries under the will of Mark M. Stanfield, deceased, to compel the payment of interest alleged to be due them. From a judgment directing the payment of interest at the rate of 3 per cent., both the petitioners and the Knickerbocker Trust Company, the executor, appeal.
    Affirmed.
    Argued before Van Brunt, P. J., and O’Brien and Andrews, JJ.
    
      Butler, Stillman & Hubbard, (John Notman, of counsel,) for guardian. Lowrey, Stone & Auerbach, for appellant Knickerbocker Trust Co. William. A. Boyd, for respondent.
   O’Brien, J.

The petitioners, Hugh M. Stanfield and Henry R. Stanfield* are adult sons of Mark M. Stanfield, deceased, who died on May 28, 1890* leaving a last will and testament, in which it was provided: “After the payment of my just debts, I give and devise unto George Otis the income of' twenty-five thousand dollars for his life; to my son Hugh M. Stanfield, the-income of twenty thousand dollars for his life; to Florestine Stanfield, wife-of Henry R. Stanfield, during the life of herself and child, the income of' twenty thousand dollars; to Henry Stanfield the income of ten thousand dollars; and to John C. Parcher the income of ten thousand dollars; and I direct, my executor, hereinafter named, to invest said sums in bond and mortgage- or government bonds, and pay the income to the respective parties named. Pending a contest over the probate of the will a temporary administrator was appointed, and qualified July 25, 1890. On January 20, 1892, the executor .not having invested the principal sums, the income of which was devised to •the two sons, Hugh M. and Henry B., they commenced proceedings before .the surrogate by petition and notice of motion for an order directing the payment to them of interest upon the principal amounts. The executor, in answer to the petition, showed to the surrogate that the principal sums had not ¡been invested, because the executor had never had in its possession sufficient iunds to enable it to provide for the payment of debts, to pay legacies, and to set up the trusts provided by the will. The questions submitted to the surrogate for decision were: (1) The devises being given “after the payment of my just debts, ” did they become effective, or could interest accrue on them, before the debts were paid? (2) From what time should interest, if allowed, be computed? (3) At what periods should interest be paid? (4) At what rate should interest be computed? The surrogate decided that interest should be paid the executor upon these bequests from the date of the death of Mark .M. Stanfield, that such interest should be computed at the rate of 3 per cent, per annum, and that payments of interest should be made annually. From that decision these appeals are taken.

We regard the law as settled that, as to general legacies, they are not payable until one year after the issuance of letters on the estate, and that, as to an annuity legacy, it begins to run from the death of the testator. The question here presented is, what is the rule as to the bequests of income? Are -we to follow the one governing the payment of annuities, or of general legacies? In Cooke v. Meeker, 36 N. Y. 15, it is said: “The authorities would seem abundant, therefore, to sustain the doctrine that when a sum is left in trust, with the 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 where, as in the will under consideration, it clearly appears 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.” Appellants insist that this statement is obiter, and in direct antagonism to the general rule and weight of authority, holding that interest upon legacies commences to run only after the expiration of a year from the granting of letters testamentary; that, as respects legacies, a direction in a will that it be paid with interest, but specifying no time from which interest is to be computed, requires, in the absence of any special circumstance, that interest commence only after the expiration of the year, except in certain cases,—of a testator who is a parent, or stands in loco parentis to the legatee, in which case, if the legatee be not an adult, interest on the legacy should be allowed as a maintenance from the time of the death of the testator. In this case, however, it must be remembered, as already stated, that the question is not as to when interest begins to run upon a legacy, or when an annuity is payable; the question being from what time interest upon bequests is payable. Although some doubt was expressed as to the correctness of the rule stated in Cooke v. Meeker, supra, in two cases which arose and were decided by former surrogates, (In re Lynch's Estate, 52 How. Pr. 367; Nahmens v. Copely, 2 Dem. Sur. 253,) we no longer regard it, so far. as this court is concerned, as an open question. In Barrow v. Barrow, (Sup.) 8 N. Y. Supp. 783, the cases are collated and discussed, and the rule as laid down in Cooke v. Meeker followed. This doctrine was applied by Mr. Justice Daniels in deciding Pierce v. Chamberlain, 41 How. Pr. 501; and the same learned judge, in his opinion in Powers v. Powers, (Sup.) 1 N. Y. Supp. 636, which was a decision of this general term, held that a beneficiary under a will bequeathing a fund to a trustee, in trust to invest the same and pay over the income, is entitled to such income from the time of the testator’s death, where the trust has been invested by the testator, and had yielded in■come from such time. We are unable to see any distinction, in principle, between the case last referred to and the one at bar. It here appears that the income received within one year and eight months from the death of the testator was $30,029.95, which, according to the valuation of the personal estate, which was stated to be $317,766.66, would make a showing of interest herein about 6 per cent. If, however, we take the executor’s figures of the amount of income received, and the percentage which such income bears to the appraised value of the personalty, it is conceded to have been 3 7-100 per cent. It was within the discretion, therefore, of the learned surrogate, in the absence of facts showing that the estate earned the full legal rate of interest, to determine what amount should be allowed; reference being had to the percentage of income of the appraised value of the personalty. We do not think that the learned surrogate was bound to allow any greater percentage, upon the facts appearing before him, than the 3 per cent, granted. In other words, it was a matter within the discretion of the surrogate, which upon the facts we do not find was unwisely exercised. We think, therefore, that the order appealed from should be affirmed; and, inasmuch as all parties appealed from some part of the order, it should be without costs of appeal to any of the parties. All concur.  