117 N.Y.S. 791 | N.Y. App. Div. | 1909
This is an appeal by the executor of the will of Anne Morris Stout, deceased, from an order of the surrogate directing payment to the administrator of Isabella Eutherfurd of interest upon a legacy.
Anne Morris Stout died, on July 2,. 1900, leaving a last will and testament and a codicil thereto. By her will she gave legacies as follows: To Caroline B. Sntlifi $12,000; to J. Herbert Carpenter $10,000; to said Caroline B. SutlifE the further sum of $5,000, and to Isabella Eutherfurd $25,000. She directed that each legacy was to be paid in full before paying any subsequently-named legatee, so that said legacies were not to abate as between themselves. The provisions of the codicil are not material to the question involved in this appeal. The amount of the estate of the testatrix in possession at the time of her death amounted to only enough to pay the legacies to Sutliff and Carpenter, and $9,635.17 on account of the legacy to Isabella Eutherfurd, leaving $15,365.83 of that-legacy unpaid. Mrs. Stout also had at the time of her death an expectant estate in one-third of the estate left by her husband and amounting to a considerable sum, her right to receive which would not accrue until the death of her daughter, and then only if said daughter should die childless. Mrs. .Stout was, the trustee of her husband’s estate and must, therefore, be presumed to have been cognizant of its extent and of her expectant interest therein and of the contingency upon which it rested. The daughter died in April, 1904, and in July of that year her executor paid to respondent, the administrator of Isabella Eutherfurd, deceased, the balance of the principal of the legacy given to liis intestate. The order appealed from directs payment of interest upon this balance from the date of its payment under the general rule that when a legacy is given without tlie assignment of any time for'payment, it is payable one year after the issue'of letters and if
It follows that, the order appealed from must be reversed, with teh dollars costs and disbursements, and the application, denied.
Ingraham, McLaughlin,. LaugHlin and Clarké, JJ., concurred. - •
Order reversed, with ten dollars costs and disbursements, and ' application denied.