The Surrogate.

■ The testatrix died March 13, 1862. Letters testamentary were issued upon the probate of her will, Febrúary 29, 1864, a litigation having been had in this Court, on the question of probate, lasting nearly two years. ■ . > - - ' , „

By her will and codicil, a legacy of $20,-000 was given to AllernS. Campbell, and one of $1,000 to Sarah Smith, since deceased. Mr. Campbell and the. administrator of Mrs. Smith now petition for the payment of their, respective legacies, demanding interest from, the date of one year after the death of the testatrix. The executor admits the possession of assets, and submits to the Surrogate the question “ whether interest must be paid on the legacies from the period commencing at the expiration of one year from March 13th, 1862, or from the period commencing at the expiration of one year from.February 29, 1864,” when the letters were issued. . : .

The question is, whether the statute-, in allowing the executor a year after he became executor, for his convenience in collecting the assets,, before he should become liable to pay the general legacies,, also postponed to "the same time, the right of the legatee to receive interest.

The Bevised Statutes say (3 R. S., p. 177, § 48, 5th ed.), “no legacies shall be paid until after the expiration .of one year from .the. time, of granting letters, testamen*123tary, unless the same are directed by the will to be sooner paid.”

And the rule is stated by Williams ( Williams on Executors, p. 1221) that “ the interest on general legacies is to be computed from the time at which the principal is actually due and payable.”

When were the legacies to Campbell and Mrs. Smith due and payable ? The will is silent. The law has therefore fixed their payment at the expiration of one year from the date of the letters.

But Surrogate Bradford, in Lawrence v. Embree, 3 Brad. R., p. 366, held that interest accrued from one year after the death of the testator. He held that the Revised Statutes “ had not changed the rule as to the payment of interest,” and that a deprivation of legatees of interest, resulting from a delay in the probate of the will, would “ award a premium for contestation, and sanction injustice.” Upon these grounds he allowed the charge of interest, after a year from death. But this decision of Surrogate Bradford was delivered in October, 1855, and probably before that distinguished jurist was made aware of the decision of the Court of Appeals, rendered in June of the same year, in the case of Bradner v. Faulkner, 12 N. Y. Reports, p. 472.

The counsel for the petitioners in this proceeding have argued that the dictmm in Bradner v. Faulkner is inapplicable to the present case, but I cannot so decide. It seems to me that the reporter’s note is fully borne out by the express language of the decision. The former is that, “ unless a will so directs, a legacy does not draw interest before it is legally payable.” It is unnecessary to refer to English decisions since this is held to be the rule under the statute of this State, which has indicated the policy of its Legislature as to legacies and their interest.

Chief Justice Gabdineb said, in this case:

“ As the will is silent on the subject of interest, and as the statute prohibits the payment of legacies until one *124year from the time of granting letters, and as the practice of the Court, prior to the statute, allowed the same time to the executor, the decision of the Court below (in favor of interest from the death of the testator),, can only be justified by an express direction of .the testator for earlier payment, or by an implication from.the provisions of the instrument equivalent to such direction. The appellants can rely upon the general rule that no interest would accrue until it became, by law, the' duty of executors to pay the legacy. The judgment of the; Supreme Court should be reversed.”

The rule with respect to interest on legacies and' bequests would, therefore, appear to be pretty well settled in this State.

1. Interest on "general legacies commences” to run from the period of one year from the issuance of letters testamentary.

' 2."But if a direction be given in the will for an earlier" payment, or a clear inference can be drawn of such an intent on the part of the testator, from the language of the will, then interest commences to run from the time fixed for the payment of the principal. This is-not the case under the will now before me.

3. Annuities, or incomes, and interest upon sums directed to be'invested upon trust .to pay over interest or income, commence to run from the death of the tés-" tator. (Barbour’s S. C. Rep., vol. 42, p. 533.)

Following the decision of the Court of Appeals, I feel compelled to deny the claim of these legatees to receive interest earlier than from one year after the date of the • letters testamentary.

[This decision of the Surrogate was reversed by Supreme Court; Campbell v. Cowdrey, 31 How. Pr. R., p. 172.]