8 N.Y.S. 783 | N.Y. Sup. Ct. | 1890
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. Eaulkner 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 be 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 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 were 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 the clause of the will under consideration. In the opinion in that court, delivered by Clerke, J., he said: “The weight of authority is in favor of allowing the payment of annuities or incomes to commence at the testator’s death.” He adds a citation, and considers numerous authorities bearing upon the subject, and says, viz.: In the case of Hil
After carefully considering the language of the will, and the circumstances relating to the testator’s estate, and the authorities to which we have referred, we are of the opinion that the plaintiff’s are entitled to receive “the net in