Harward v. Hewlett

5 Redf. 330 | N.Y. Sur. Ct. | 1881

The Surrogate.

As a general rule, a legacy only draws interest from the time it becomes payable, unless it is otherwise expressed in the will.

To this rulé there are several exceptions, and one is where the testator was the parent, or stood in the relation of parent, to the legatee, and such legatee is an infant, and has no other provision nor any maintenance, in the meantime, allotted by the will. The rule is based upon the presumption that. the testator, in such case, must have intended that the legatee should in the meantime be maintained at his expense, thus discharging his moral obligation or carrying out his benevolent design (Brown v. Knapp, 17 Hun, 160 ; 79 N. Y., 136, 141; Wms. on Ex'rs. [2d ed.], 1538, 1539).

In the principal case, the testator was not the father of the legatee, and there is nothing to show that he had assumed the relation'of a parent towards her ; the case is not therefore brought within the exception to the general rule above referred to.

The legatee having no claim to the interest accruing on her legacy while she remains an infant, it belongs to the residuary legatee, who is entitled to all personal property, including all interest made on the estate, not disposed of by the will ( Wms. on Ex'rs. [2d ed.], 1568 ; McLoskey v. Reid, 4 Bradf., 334, 339, 340).

The vouchers must be tiled, before the disbursements charged in the account can be allowed, and the costs of this accounting have no place in the account, as they must first be fixed and allowed .by the decree. If any charge is made for counsel fees paid in this proceeding, it should be separately stated, so that the court may judge whether it exceeds the limit fixed by section 2562 of the Code; and 'there should be proof by affidavit of the number of days necessarily occupied in preparing the account for settlement, which, in this case, judging from an inspection of the account, cannot probably exceed one day.

Decreed accordingly.