27 N.Y. St. Rep. 36 | N.Y. Sur. Ct. | 1889
On the part of Mrs. Harrington, two objections, among some minor ones, are presented for solution. The first is, that the provision of the will directing the executors to expend two hundred dollars in keeping the burial plot of the deceased in order, is void, because in conflict with the statute against perpetuities; and the second is, that the executor has not paid and resists payment to the residuary legatee for life, of the earnings of the fund.
It may be regarded as somewhat remarkable that no adjudicated case, in this state, can be found, which determines the point covered by the first objection, although a similar provision is made in many wills, which have come under my observation. Doubtless the reason why a similar objection has not been made in such cases, was a delicate regard for the wishes of the deceased in that respect. Whatever the cause, as the question is now raised, it must be determined. Our statute forbids a disposition of property in such
As to the second point, it seems to be well settled that the gift of the residue for life, will entitle the residuary legatee to such interest as may have accrued up to the end of the year after letters were granted, and then interest on the amount of the fund, as after-wards ascertained, from that first year. 2 Redf. on Wills, 472; Dimes v. Scott, 4 Russ. 195; Lovering v. Minot, 9 Cush. 151, 156; Williamson v. Williamson, 6 Paige 298.
It follows, then, that the $200 to keep the burial plot in good condition, being undisposed of, in a legal sense, will fall into the residuum, and that Mrs. Harrington is entitled to interest, as above stated.
The other objections are overruled.