141 A.D. 43 | N.Y. App. Div. | 1910
. ■ The will. of- William Howard, as modified by a codicil thereito, contained theHollpwing provisions“ Eirst. After the payment <b'f all my just debts and funeral expenses, I give and bequeath to nry wife, Anna P. Howard, all my silverware, and all my household! " and kitchen furniture, including piano, books, pictures dnd" bric-abrac in.my house, Ho. 260 Washington avenue, Borough of Brook/ lyn, or in any other.-house ■ that I may .occupy,at the time of my . death, I further direct that my wife,shall be allowed to remain in 'my Washington ave'nue.Jious,e,,or any house that I may be occupying at the time of my death, for [two] - months after my death, if she so desires, during the same time. The" expense of said house and of living there, and- of the horses and. coachman, to b.e paid out of my"‘estate/’ A legacy-of $2,000 was then given, to the Brooklyn Industrial Scliotil and Home for Destitute -Children. - The will and ■codicil further provided': “'Third. After: the paymeirtof the above
The widow claimed that she was entitled to interest upon the trust fund of $32,000 from the date of the death of the testator to the date of the accounting, computed at the same rate as that actually earned by his entire personal estate during that period. From so much of the decree of the Surrogate’s Court as sustains such claim this appeal is taken.
At the time of testator’s death his personal property was invested in income-producing securities. If the only provision contained in his will relating to his widow was that which directed the executor and trustee to invest and reinvest the sum of $32,000, and to pay to her the income received therefrom for a,nd during her natural life, there would be no question that her claim was well founded and that the surrogate’s decree was right. (Matter of Stanfield, 135 N. Y. 292 ; Cooke v. Meeker, 36 id. 15; Matter of Slocum, 60 App. Div. 438; affd. as to this point, 169 N. Y. 153; Matter of Baker, 57 App. Div. 44; Bank of Niagara v. Talbot, 110 id. 519; affd., 184 N. Y. 576; Matter of Dewey, 153 id. 63.) And this would seem to be the case notwithstanding the direction that this provision if accepted should be in'lien of and in full satisfaction of her dower and all other rights in and to or claim upon testator’s estate. (Matter of Dunn [Barnes], 7 App. Div. 13 ; affd., 154 N. Y. 737.)
The -first objection is clearly untenable. The word “ after,” used . in such connection, should not bé construed as fixing a. point of time in. connection with which an event shall take place.. Such a word used in a testamentary "gift of a remainder following a life estate . has been held not .to prevent the vesting of such estate in remain- ■ der until the termination of the preceding estate. (Nelson v. Russell, 135 N. Y. 137; Hersee v. Simpson, 154 id. 496.) ■ By analogy it Seems to me that when a general legacy or the income of a trust fund is given, payable. “ after the payment ” of another general legacy, this'word and'words of similar import must be construed as referring to» the order of marshaling the assets of the estate'and-not to the point of time when the rights of the legatee . or. beneficiary accrued. ' •'■•'.
The other! objection impresses us as much more . serious, in character. The exceptions to the general rule that a legacy should not be payable, and, therefore, draw no interest until- one year after the issuing of letters testamentary, are sometimes said to be based upon an intent,- express or implied, that the legatee should in . the meantime be maintained at the testator’s expense. . (Brown v. Knapp, 79 N. Y. 136.) It is upon this ground that legacies to minor children or to ’minors- to whom the testator stood in loco
In the Stanfield Case (supra) the court say: “ The bequest is not of a part of the principal of the estate, or of any property pos
I think that the decision of the learned surrogate was right, and that so much of the decree as is appealed from should be affirmed-, with costs.
Hirsohberg, P. J., Woodward, Rich áifd Carr, JJ., concurred.
Decree of the Surrogate’s Court of Kings county, in so far as appealed from,, affirmed, with costs,