
    William E. Thorn, App’lt, v. Harriet H. Garner et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1, Will—Legacy not payable until one year after granting of
    LETTERS TESTAMENTARY.
    The statute prohibits the payment of legacies until a year after the granting of letters testamentary, and the general principle is that interest upon legacies is not payable until the principal becomes due.
    "2. Same—When interest allowed before principal becomes due
    Where interest is allowed before that time, without a specific direction in the will, it constitutes an exception to the general rule, and is founded upon certain facts which the courts have agreed are equivalent to an ex • press direction in the will to pay interest, because from such facts the courts will presume an intention on the part of the testator to have it paid,
    .3. Same—When interest to infant child payable prom time of death.
    The fact that the legacy is payable to an infant child, or to an infant towards whom the testator had stood in loco pao'entis, such as a grandchild, and that there was no other provision made in the will for the maintenance of such legatee, has been regarded as a fact sufficiently indicative of the intention of the testator to authorize payment of interest from his death although such direction is not found in the will.
    ■4. Same—What facts not sufficient to show intention of testator
    THAT INTEREST BE PAID ON LEGACY FROM DEATH OF TESTATOR.
    The facts that the legatee, although at the time of the death of the testator was a man twenty-seven or twenty-eight years old, was yet in poor health, unable to support himself, and that from his birth up to the time of the death of the testator he had been wholly supported by such testator, Held, not enough to show that the intention of the testator was, that interest from the time of his death should be paid upon the legacy.
    Appeal from a judgment supreme court, general term, /first department, affirming a judgment entered on the jreport of a referee.
    
      Homer A. Nelson, for resp’ts; Joseph H. Choate, Duncan Smith, J. Evarts Tracy and Wm. V. Rowe, for def’ts; Nathaniel S. Smith, for guardian ad litem of infant def’ts.
    
      
       Modifying 4 N. Y. Stale Rep., 433.
    
   Peckham, J.

—On the 16th of October, 1867, Thomas Garner, a resident of the city of New York, died. Up to the time of his death he had carried on an extensive business in the manufacture and sale of cotton goods under the firm name of Garner & Co. By his will he gave and bequeathed to his son Thomas the sum of one million dollars to be paid to him within eighteen months after the testator’s necease.

The chief question arising upon this appeal is whether the legacy bore interest from the time of the death of the testator up to the time when it was paid, eighteen months thereafter. It has thus far been held that it did. We have come to a contrary conclusion. The statute prohibits the payment of legacies until a year after the granting of letters testamentary; and the general principle is that interest upon legacies is not payable until the principal becomes due. If interest be allowed before that time, without a specific direction in the will, it constitutes an exception to the rule, and is founded generally upon certain facts which the courts have agreed are equivalent to an express direction in the will to pay interest, because from such facts the courts will presume an intention on the part of the testator to have it paid. See Bradner v. Faulker, 12 N. Y., 472; Cooke v. Meeker, 36 id., 18; Brown v. Knapp, 79 id., 136.

The fact that the legacy was payable to an inf ant child, or to an infant towards whom the testator had stood in loco parentis, such as a grandchild, and that there was no other provision made in the will for the maintenance of such legatee, has been regarded by the courts as a fact sufficiently indicative of the intention of the testator to authorize payment of interest from his death, although such direction was not found in the will. Cases cited (supra).

The widow and daughter of the deceased legatee in this case claim that there were facts existing which showed that it was the intention of the testator that the legacy should draw interest from the time of his death. It cannot be disputed that if such were his intention it is the duty of the court to carry it out. As there was no specific direction in this will to pay interest, the claim that, nevertheless, it was the intention of the testator that it should be paid from the time of his death is founded upon that the statement that the legatee, although at the time of the death of the testator, a man twenty-seven or twenty-eight years old, was yet in poor health, unable to support himself, and that from his birth up to the time of the death of the testator he had been wholly supported by such testator and that the legacy was of course given to him for his support and maintenance and on account of all these facts, it was intended by the testator to bear interest from the time of his death; that it could not have been his intention that his son, the legatee, should have no fund to resort to for his support for eighteen months after his death.

The learned cox widow and child of the legatee admitted ( erly) that the mere fact that a legacy is gr iort in express terms of an adult child, is not ut the presumption which exists against an ; 3 able to support himself for the first year,; in the particular cí as support after th practice. But he additional fact is f ¡herefore the support referred to ie what is ordinarily understood L in accordance with the usual ■ the rule is altered when the account of the ill health of

the legatee in this case he was unable to support himself during that year, and that he had no other means of support than the legacy given him by the will of his father. We have looked at all the cases cited by the counsel upon this question, and we find none where it is held that interest upon a legacy is payable from the death of the testator where the legacy was given to an adult. In McWilliams v. Falcon (6 Jones N. C. Eq. 235), the interest was; directed to be paid annually for the sole and separate use of the testator’s mother, and the legacy was demonstrative and the fund productive. In Hart v. Williams (77 N. C. 426), the legatee was a freed man. The legacy was a pecuniary one, and so far as I can understand from the case, interest was allowed commencing a year from the death of the testator. In Morgan v. Pope (7 Coldw. [Tenn.], 541), interest in fact was allowed commencing a year from the testator’s death. We think there is not enough in this case, to show that the intention of the testator (which as all agree is the controlling element), was that interest from the time of his death should be paid upon this legacy. The-legatee, although in delicate health, was not, as the case shows, absolutely incompetent to transact any business. He was a gentleman of leisure; travelled considerably; bought land and built, or repaired a house, and clearly was-able to be out and to give some little attention to business-for at least a portion of the time, had he so desired. It is true his father had always supported him; but it is of course also true that his father knew the condition of his son’s health, his capacity for business and his general ability to-transact it, and with such knowledge made him one of the-executors of his large estate. The testator was a man of experience, engaged in large business enterprises and a man who had made an immense fortune, stated in the case to have been at the time of his death between four and five-millions of dollars. From the time his son became of age-he had given him a salary, nominal in amount, and allowed him to draw for sums far in excess of the amount of his salary. These were charged upon tlv books of the testator as against the salary account, and profit and loss. To such a man was necessarily an important one. balance charged to i question of interest

It was, of course, present to his supposed that if he had intended from the time of his decease, his t upon that subject. The langu^' and it cannot be-est should be paid ild have been silentardner, Oh. J., in Bradner v. Faulkner (supra) very apt here. In addition have the strong negative evitestator in his omisssion to e same subject is. considerations we > intention of the ;his legacy should ■draw interest from any period. He was aware that there was to be an interval between his death and the receipt of this bequest by the beneficiary, should his executors comply literally with his injunctions. The amount (of the legacy) was large, and the interest, even for a few months, too considerable to escape the attention of a man in the habit of making investments and realizing interest upon them, as the inventory of his estate proves to have _ been the case with the testator. That he, as a man of business, .should make no provision for interest under these circumstances is presumative evidence that in his opinion the advantages of his daughter in the disposition of his property, could be and were equalized without it. * * * It is enough that the matter (of the payment of interest), is left in doubt. Plaintiff can rely on the general rule that no interest accrues until the legacy was payable. The burden is upon those who claim it, to show a clear intent that interest should be paid from the time of the death of the testator, notwithstanding his silence on the subject. This has not been done. We are not authorized to speculate as to his intention, or to add to the will by mere conjecture.” Before the death of his father, so far as appears from the evidence, the legatee had never drawn as much as $15,000 a year; but by his appointment as one of the executors of this enormous estate he had but to qualify, or in other words to do what his father by such appointment desired that he should do, and his fees as executor would have been largely in excess of any sum he had annually drawn from his father while living. It may very well be that the testator appointed him executor for the very purpose of enabling him to earn such fees and to place him, in some degree, upon an equality (in the management of the estate at least) with his younger brother, Wm. T.; and in addition, the fact that he was executor would enable him to pay himself the amount of the legacy bequeathed to him at the earliest possible moment consistent with the proper administration of the estate. If it were admitted that the rule has been correctly stated by the counsel for the widow of the legatee, we yet hold that this case does not fall within the most liberal construction of that rule, because it is evident from the facts that the legatee had but to qualify as executor of the will of his deceased father to put himself in a position to earn, with very slight effort, far more in the course of a year than he had ever received from his father while living in the same length of time, and also because by virtue of his position as executor he could have paid the legacy to himself, as above stated. These facts, together with the absence of any direction in the will to pay interest, seem to us to be conclusive against any such intention having existed in the mind of the testator when he executed the will.

What has already been said disposes of the claim made by the counsel for the widow of the legatee, that in any event interest upon the legacy is payable at the expiration of the year from the death of the testator. By the terms-of the will it was not due until eighteen months from the-time of the testator’s death, and the cases cited by the-learned counsel in relation to interest being payable at the expiration of the year do not apply. The interest charged against plaintiff upon the legacy for eighteen months, and . the interest on that sum, must therefore be stricken from the account.

The next question arising is whether the interest amounting to $13,198.95, upon certain alleged advances of Garner & Co., to the legatee is properly charged. We think plainly not. By the system of bookkeeping adopted it appears, that during the eighteen months which elapsed between the death of Thomas Garner, senior, and the payment of the legacy of $1,000,000, certain sums of money, amounting te one hundred and sixty-four thousand and some odd dollars,, were paid to the legatee by Gamer & Co., and interest upon those payments was charged from the time of each payment until their repayment by the plaintiff after the receipt of the million dollars legacy. In truth there were no such advances and no such interest. The whole thing was a, mere matter of bookkeeping.

Garner & Co. consisted simply of Wm. T. Garner, the brother of the deceased legatee and the executor of his-father’s will, and the payments made to the legatee, nominally by Garner & Co., were payments on account of the legacy to such legatee by Wm. T. Garner, the executor, and during that eighteen months they amounted to the sum above-mentioned. At the expiration of the eighteen months the balance of the million dollars became due and was credited on the books to the legatee as a payment in full of that amount,, deducting therefrom the internal revenue tax. The payments actually made being made in truth by Wm. T. Garner on account of the legacy, no interest on those alleged advances by Garner & Co., which was simply another name for Wm. T. Garner, could properly be charged; and that-sum should be deducted from such alleged payments.

We think the referee - committed no error in refusing te allow to the plaintiff any larger proportion than he did of the charges of W. K. Thorn for legal services to the estate. Such services consisted in keeping down the taxes on the whole estate belonging to Thomas Garner, deceased, in his. life-time. It appears from the evidence that such services were for the benefit of the whole of such estate, including-that belonging to the residuary legatee, Wm. T. Garner.

By a stipulation in the case it was agreed that the estate for which the plaintiff was trustee was to be charged its-proportional share of the taxes paid upon the whole estate; ■and we think the referee was entirely within the evidence in making the decision he did in regard to the proportion to be paid by the estate of which the plaintiff was trustee for the services of Mr. Thorn.

There would seem to have been no error upon the part ■of the referee in crediting the amount of $10,000 paid by the plaintiff as an internal revenue tax upon the legacy of $1,000,000. It was credited as of the' time when paid.

This disposes of all the questions raised upon the appeal to this court.

The decree of the court below should be modified in conformity with the views expressed here, and, as modified, affirmed, with costs to all the parties payable out of the fund.

All concur.  