40 N.Y.S. 494 | N.Y. App. Div. | 1896
Lead Opinion
The first question presented is, whether. or not the widow is entitled to interest on a legacy left to her by the will of the testator which she was to receive “ in lieu of all other interest, dower or distributive share of. my estate.” No trust was created by the will,' but the widow was given a legacy of $150,000 absolutely, and the question is, whether or not in addition to. this sum she is entitled to the interest on this sum from the death of the testator until the expiration of one year after the issue of letters testamentary.
There seems to have been some confusion in the cases arising from a failure to observe the distinction between-a legacy given to a wife in lieu of dower where a trust is created, the income of which is to be paid to the wife for her life, and the case of an absolute beqúest of personal property which is not directly stated to be for her maintenance and support, but which , is given in lieu of dower. In the first class of cases it is clear that the income would commence
This rule, however, has been extended in Massachusetts to a case where a legacy is given absolutely to a widow in lieu of dower. In Pollard v. Pollard (1 Allen, 490) the testator bequeathed to the plaintiff, who was his widow, the sum of $3,800 in lieu of dower, or any distributive share in his estate, on the express condition that she should release all her right and title thereto. The court held that “ When she accepts a provision in her husband’s will as a substitute for this existing legal right, the law regards her as standing in the light of a purchaser for a valuable consideration, and entitled to receive the whole of the sum given by the will, for which she has relinquished her life estate in one-third of the testator’s real estate, in preference to other legatees, who, being only objects of the. bounty of the testator, and' not having any legal claim on his estate, are regarded as volunteers, and are not allowed to take until the widow has received the full amount of the bequest to her.
In England interest does not seem to have been allownd from the death of the testator, even where the legacy was left to the' wife for life (see Lowndes v. Lowndes, 15 Vesey, 301; Raven v. Waite, 1 Swanst. 553). The cases determined by Surrogate Bradford which are cited and relied upon by the learned surrogate do not support the position taken by the court below. The first case was Hepburn v. Hepburn (2 Bradf. 74), but that was a case where an undivided half of the residuary estate of the testator was given to the executors in trust with a direction to pay one-half of the net income to the widow in lieu of dower, the surrogate placing his decision upon the ground that “ legacies, ordinarily, are not payable until the expiration of a year, and they carry interest only from the time they are payable. But the bequest of a life estate to a child, or to a widow in lieu of dower, are exceptions to the general rule; and in such cases the legatees take interest from, the .testator’s decease.” The next case is Parkinson v. Parkinson (2 Bradf. 78). In that case there was a legacy of a specific fund in the safe-keeping of a third person at lawful interest, and in addition to that, a bequest of the annual interest as it should become due upon a sum of $2,000. loaned to the trustees of a church during the lifetime of the widow. In determining the question whether -interest should be allowed on such legacies from the time of the testator’s death the learned surrogate says:. “ Legacies generally carry interest only from the time they become payable, that is, at the end of a year, when no other' period is fixed. There are exceptions to this rule, but they do not apply to the case of a wife * * * unless the legacy is a gift of a life estate in the residue, or to be given to her in lieu of dower. In the present instance the legacies are given with that object, and
A case where a testator gives to his wife the income of a fund to be held in trust, or a life estate in property, the income only in either case being received by the wife, is entirely distinct from a case where the gross sum is given to the wife in lieu of dower. In the one case the income is given evidently for the purposes of support, and, as'the wife has. no power to appropriate the principal during the year, if interest were not allowed from the death' of the testator she would have no support, and the clear intention of the testator would be frustrated. On the other hand, where a gross sum is given to a wife in lieu of dower, over which she has the absolute right of disposition, such gross sum takes the place of the dower interest, and the wife has the right to appropriate it at once for her support. Interest on the legacy was not necessary to provide her with a support for the year after the death of the testator.
The court, after a review of all the authorities, held: “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,” and we think, upon the facts of this case, we must come to the same conclusion. The testator left an estate of about $342,000 ; of that he bequeathed $150,000 to his widow (one of the respondents). Thus, almost one-half of the testator’s estate was given absolutely to the widow ;• and it does not appear that the testator left any real estate so that his widow parted with nothing by the acceptance of this legacy, and the principle upon which the Massachusetts cases were founded does not apply.
There is absolutely nothing in this will, or the circumstances surrounding the parties, to show that the testator intended that, in' addition tc the legacy of $150,000 which he gave to his wife, there should also be taken from his estate the further sum- of $6.000 as interest upon that legacy.
The statute prohibits the payment of a legacy until one year from the death of the testator, unless a contrary'intention is plainly expressed in the will, and we find no evidence of such an intention in the will in question.
We do not think that, finder the circumstances, tne amount allowed for a monument to the testator is excessive. The estate was quite a large one, and it is quite proper that a suitable monument should be erected. The wishes of this widow should be consulted as well as the wishes of the children, and there is nothing before us to show that the amount reserved ($2,000) was at all excessive.
The decree should be modified as hereinbefore provided, and, as modified, affirmed, with costs.
Van Brunt, P. J., Rumsey and Williams, JJ., concurred; Patterson, J., dissented.
Concurrence Opinion
I concur in the opinion of Mr. Justice Ingraham. The testator, by his will, gave to his wife a legacy of $150,000. He knew that this legacy could not be paid until one year after the issuance of letters testamentary, and he is presumed to have had this fact in mind in fixing the amount. The court has no authority to make this legacy $159,000, in opposition to the express direction of the testator that it should be $150,000. Interest is • a penalty imposed because of a default in the payment of money which is due, and there is no instance to be found in which interest can be charged where there is no default.'
Decree modified as directed in Opinion, and, as modified, affirmed, with costs. -