In re the Judicial Settlement of the Account of Morgan — 19 N.Y. St. Rep. 515

Majority

p. 515

In the Matter of the Judicial Settlement of the Account of Charles V. Morgan as Executor of the Will of James Morgan, Deceased.

(Surrogate’s Court, Westchester County,

Filed November 18, 1887.)

Headnote

1. Legacy—Ween interest allowed.

The rule which gives interest on a legacy to a child whose parent has left the legacy by way of support and for whose maintenance no other provision is made, does not apply to a case where the legatee has other means of support, although her income may be insufficient for her support in a style which she might desire.

2. Same—When a tender of the amount of the legacy stops accumulation OF INTEREST.

The tender by the executor to the legatee of the amount of the legacy and interest, if refused by the legatee bars a claim for interest from that time as effectually in the surrogate’s court as in court a of law. The will of the deceased gave to her daughter $20,000, which, by the codicil, was reduced to $10,000. The codicil was contested but admitted to probate. After a year had elapsed the executor tendered to said daughter the $10, - 000, with interest thereon from a year after the date of issue of letters testamentary, which she refused to accept. On the accoui ting she claimed interest from the date of the issne of the letters testamentary, and made affidavit tending to show that she was dependent on the legacy or the interest thereof for support. The executor produced affidavit showing that she had property of her own independent of that devised and bequeathed to her That he had paid her $200; that she had sold part of the, real estate devised to her for $4,000. The will made no provision as to the time when the legacy was to be paid.*

Banks & Anderson, for executor; M. J. Keogh, for legatee.

Ordinarily a legacy, where no time of payment is fixed by the will, is not payable until one year after the granting of letters. There are some exceptions! how

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ever, to this rule. The one bearing upon the question here presented is, where a legacy is left by a parent to a child by way of support, for whose maintenance no other provision, is made and who, unless interest be allowed, is without income intermediate the death of the testator and the end of a year from the granting of the letters (2 Redf. on Wills, 467, and n.). The facts in this case do not seem to bring Mrs. Valentine’s claim of interest within this exception. The testator devised to her real estate of the estimated value of about $16,000. At the time of his death, the affidavit presented by the executor shows that she was the owner of some real estate in Brooklyn, and that he had borrowed from her $200, for which she held his promissory note. So that, taking into consideration these facts in connection with the facts of the devises made to her by the will, it would be incorrect to hold that no other provision was made for her other than the legacy, or that she was without income during the year. According to her ideas, such income may have been insufficient for her support in a .style she desired.

Beside, she had an able-bodied husband whose_ duty, whatever his inclination may have been, was to provide her •a suitable support. Nor was this all. She had two sons, men grown, and in some kind of business, upon whom rested, in connection with their father, a natural, if not a legal, obligation to provide for her wants. Her case, it will be thus seen, is very different from that, of a child destitute of all other means of support other than the legacy. _ There is nothing contained in the will, nor in the surrounding circumstances to indicate that this legacy was given for the purpose of maintenance. Her claim is deemed untenable, without allusion to the further fact that she has sold a portion of the real property devised to her for $4,000.

The tender of the amount of the legacy and interest, to the legatee, which she refused to accept, must be given its legal effect. If the tender were of sufficient amount, it will bar any claim for interest from that time, as effectually here, as if she had sued to recover her legacy in a court of law.

The decree will be prepared in accordance with the above views.