1 N.J. Eq. 40 | New York Court of Chancery | 1830
This case comes op on an application to the court for directions, as to the payment of interest on a legacy of $2000, given to the widow, by the will of Ackerman, the testator. On looking into the matter, I see nothing to take the case out of the common rule applicable to interest on legacies generally. The idea that this was intended as a maintenance to the widow, and that therefore interest should be allowed from the death of the testator, cannot be supported. The exception extends to infants only. 1 Swans. R. 553 ; 2 John. C. R. 628. The only dictum to be found in favour of extending the exception to the wife, is that of Lord Alvanley, in Crocket v. Dolby, 3 Ves. jr. 16 ; and this has been many times overruled: Stent v. Robinson, 12 Ves. jr. 461; Lowndes v. Lowndes, 15 Ves. jr. 301: Raven v. Waite, 1 Swans. 553; and the cases there cited. Nor is it material that the legacy in this case was payable out of the land. The question of interest is not regulated by the fund out of which the legacy is to be paid, whether it be productive or not: Gibson v. Bott, 7 Ves. jr. 89. On the other hand, the legatee is not to be deprived of her interest, because she declined receiving the legacy when payment was offered by the executors. . A controversy was pending respecting the will of the testator, so far as it affected the real estate : with that controversy her rights under (be will were in a degree connected ; and I think she is excused, at least, if not justified, in declining to receive the legacy until the matter was settled. The executors have performed their duty fully ; and the widow has done nothing, as f conceive, to forfeit her lights. My opinion is, that the widow be allowed interest on the legacy from the 28th day of January. 1829, being one year from the testator’s death.
