Powers v. Powers — 56 N.Y. Sup. Ct. 219

Majority

p. 219

HENRY H. POWERS, Plaintiff, v. ELLIS K. POWERS, as Executor, etc., of HOLLIS L. POWERS, Deceased, Defendant.

Headnote

Legacy — when it draws interest from the testator's death

A testator by his will gave to his executor and trustee the sum of $50,000, ■“intrust, however, to invest and reinvest the same from time to time as may be-necessary in first bonds and mortgages or United States government securities,, and to pay over the income thereof to my cousin, Henry H. Powers, during the-term of his natural life.”

Held, that as it appeared that the amount had been invested by the testator himself, and was yielding interest from the time of his decease, that the right to such interest necessarily vested in the beneficiary of the trust and became his property from the time of the death of the testator.

Case agreed upon and submitted to tbe court for its decision,, pursuant to section 12-79 of tbe Code of Civil Procedure.

Tbe question submitted to tbis court for its decision is whether tbe plaintiff is entitled to interest, under the trust created in bis favor by tbe fifth clause of the will of tbe testator, from tbe time of his decease. In tbis clause be gave to bis executor and trustee tbe sum of $50,000, “in trust, however, to invest and reinvest tbe same from time to time, as may be necessary, in first bonds and mortgages or United States government securities, and to pay over tbe income thereof to my cousin, Henry H. Powers, during the term of his natural life.”

Tbe residue of tbis clause in the will is not important to be considered by tbe court. The plaintiff claims tbe interest or income of tbis sum of money from tbe time of tbe death of the testator. It was disposed of in no other manner than by giving it to him directly; and as tbe amount was invested by tbe testator himself,, and yielding tbis interest or income from tbe time of bis decease, tbe right to it necessarily vested in and became tbe property of tbe plaintiff. This subject was considered in Cooke v. Meeker ( 36 N. Y., 15 ), where that construction was placed upon a similar direction contained in a will, and no authority has been found, neither is there any probability that any can be, in any manner modifying or changing this rule.

p. 220

It has been agreed by the case, if this construction is to be placed upon this clause of the will, that the plaintiff is entitled to recover judgment for the sum of $2,107.87. He is so entitled, and consequently judgment should be directed in his favor for the recovery ■of that amount.

Yan Brunt, P. J., and Brady J., concurred.

Judgment ordered for plaintiff as directed in opinion.