In re the Estate of Dubernell — 20 N.Y. St. Rep. 353

Majority

p. 353

In the Matter of the Estate of Margaretha Dubernell, Deceased.

(Surrogate’s Court, Kings County,

Filed July, 1888.)

Headnote

"Legacy to infant—When it draws interest from the death of the TESTATOR.

An infant legatee to whom the testator stood in loco parentis is entitled

p. 354

to interest from the death of the latter, although the legacy is made payable at a future day, if no provision for any maintainance in the meantime is allotted by. the will. It is not necessary that the infant legatee should have no other property upon which he can be maintained. It is-sufficient to entitle him to interest that there is no other provision nor any maintenance in the meantime allotted by the will.

Petition for a citation to an executor to procure a. judicial settlement of his accounts.

Henry Fuehrer, for petitioner; Jackson & Burr, for executor.

The bequest in this matter is contained in the fourth clause of decedent’s will, and reads as follows: “I give and bequeath the. .sum of $2,500 which is deposited by me partly in the German Savings Bank corner Broadway and Boerum street in the city of Brooklyn, E. D.. and partly in the Savings Institution No. three (3), Chambers street, city of New York, to my three children issued with my first husband John Neder, namely: John, Joseph and Sebastian Neder, for to have the same'divided among them in equal share and share alike, but any of those three, John Joseph and Sebastian Neder by having arrived at the age of twenty-one years, shall draw his share out of said $2,500.

This is an application by John Neder, one of said legatees, who was a minor at the death of the testatrix, to compel an accounting by the executor based upon.a claim that interest has not been paid from the death of testatrix or the time it was of deposit. It appears that his share of the principal has been paid and that he is now of age.

The petitioner to sustain the claim for interest contends, that, the legacy is specific. It does not appear that the precise sum .of $2,500 was on deposit in the banks named, but. whether the legacy is specific or simply demonstrative, I think the petitioner is entitled to the interest claimed and so interested sufficiently to maintain this proceeding. It is stated, in the opinion of the court in Brown v. Knapp ( 79 N. Y., 136 -141): “When there is a legacy to a minor child or to an infant as to whom the testator is in loco parentis, and such legatee has no other provision nor any maintenance in the meantime-allotted by the will, i[he legacy although payable at a future day carries interest from the-death of the testator.”

This authority leads to my holding that. the petitioner is-entitled to interest from the date of testatrix’s death and sc entitled to an account.

It will be observed that it is not. as claimed by the executor, essential that the infant legatee has no other property upon which he can be maintained. It is sufficient that-there is no other provision nor any maintenance in the meantime allotted by the will.

The executor should account.