Campbell v. Cowdrey, 31 How. Pr. 172

Campbell v. Cowdrey

31 How. Pr. 172 | N.Y. Sup. Ct. | 1865

Lead Opinion

By the court, Barnard, J.

In the absence of an intent, either express or fairly, to be inferred from the provisions of the will, it is provided by statute that no legacy shall be paid until after the expiration of one year from the time of granting letters testamentary (3 R. S. 177, § 48, 5th ed). The testatrix by her will and the codicil thereto, has given no evidence of any intention to provide for the payment of the legacy in question before the time the law makes it payable. She has not said in words that such was her, wish or direction. She has provided first for the payment of her debts, which cannot be legally ascertained until the expiration of one year from the issuing of letters. The claim of the appellant for interest upon his legacy from the death of the testatrix must fail. The negative evidence, from the-*180silence of the will, and the fair inference from the terms of the will itself, show an absence of the clear intent which must be shown before this interest could legally be claimed. The legacy is not then payable until the expiration of the year from the issuing of letters; but it is claimed that at all events there should be allowed interest on the legacy from the expiration of one year from the death of testatrix. Where the will is silent as to interest upon a legacy, none will accrue until it becomes by law the duty of the executor to pay the legacy (Bradner agt. Faulkner, 12 N. Y. Rep. 472).

The decree of the surrogate must therefore be affirmed, with costs.

Concurrence Opinion

Ingraham, P. J.

I concur in holding that the legatee was not entitled to interest until one year after the death of the testatrix. .

I see nothing in the statute, nor in 12 N. Y. Rep. 472, to the contrary. In Williamson agt. Williamson (6 Paige Rep. p. 298), the chancellor states the rule to be that the legatees are not entitled to interest until one year after the death of the testatrix.

In Bradner agt. Faulkner (12 N. Y. Rep. 472), the question was whether interest was chargeable on the legacy from the death of the .testator. In the opinion, Gaedneb, J. says, “ we cannot say but that the testator thought $16,000 at the end of a year, without interest, equal to the same value in land,” which would pass at once. Again, the testator “ knew that a year was the reasonable time fixed by law for the payment of the legacy’ unless he otherwise directed.”

It is evident- the attention of the court was not directed to the case of a residuary legatee contesting a will for years where the legacies were large, and where, if the views in the court below are sustained, the residuary estate is increased by the litigation.

I concur with Bradford, surrogate, in Lawrence agt. Embree (3 Bradford, 364), that the object of the statute was only to allow a specified time for the executor to settle the estate, and it was not designed to affect or modify the rights of *181parties interested in claims or legacies, and that the old rule in equity, governing the payment of interest, whereby a legatee is entitled to interest after one year from death of the testator, is still in force.

The plaintiff is entitled to interest after one year from the death of the testator.

Concur, Wm. H. Leonard.