Cooke v. Meeker

By the Court, Clerke, J. notwithstanding that the statute provides, what was previously to its passage generally recognized, that no legacy shall be paid until after the expiration of one year from granting letters testamentary, unless the same is directed by the will to be sooner paid, yet the weight of authority is in favor of allowing the payment of annuities or incomes to commence at the testator’s death. The chancellor, in Craig v. Craig, (3 Barb. Ch. Rep. 105,) takes this for granted; referring to Gibson v. Bott, (7 Vesey, 96;) Fearnes v. Young, (9 id. 553;) Rebecca Owings’ case, (1 Bland’s Ch. Rep. 296.) In the case of Houghton v, Franklin, (1 Sim. & Stu. 392,) Sir John Leach, V. C. declared that as a will speaks at the death of a testator, it must be intended that the payment of an annual sum given by it is to commence from that period, unless there are some circumstances or expressions in the [541] will to control that intention. I may add to the above a great number of cases to the same purport. At the hearing, I was inclined to the opinion that the rule allowing payment to commence from the death of the testator applied only to what may be strictly called annuities, such as a charge upon specific lands, or specific personal property. But in Craig v. Craig no specific property was appropriated to the payment of the annuity. After mating provision for the payment of his debts, and giving some small legacies to collateral relatives, the testator directed that, out of the residue of his estate, investments were to be made, to produce the annuities in question. In Gibson v. Bott the testator bequeathed all. the residue of his property to his executors, upon trust, &c.; and he directed that they should stand possessed as well of the moneys by him already invested as of the moneys to be invested, and the interest and dividends, &c. and to pay one moiety of the .clear yearly interest, dividends and proceeds, to each of his two daughters, and their assigns, for life, &c. The provision made by the testator, in Feames v. Young, is similar. The two later cases of Augerstein v. Martin, (1 Turner & Russell, 232,) and Hewitt v. Morris, (Id. 241,) are very much in point. In the one, the testator having devised lands to A. for life, &c. directed the residue of his personal estate, subject to the payment of debts and legacies, with all convenient speed to be laid out in the purchase of lands to be settled forthwith to the same uses. A large portion of the testator’s personal estate, not required for the payment of debts and legacies, being invested in the funds and upon security carrying interest, the tenant for life was held entitled to the interest of that portion from the death of the testator. In Hewitt v. Morris the testator directed his executors to invest the residue of his estate, after payment of debts and legacies, in the funds or upon securities, the interest to be paid to A. for life, and, after his death, the principal to be held upon trusts for Ms children. The tenant [542] for life was held, to he entitled to interest accruing within the year next after the testator’s death, upon funds in which the testator’s property stood invested at the time of his death, and which •were not required for the payment of debts and legacies. [New York General Term, November 7, 1864. In the case of Hillyard’s estate, (5 Watts & Serg. 30,) the bequest was to the executors in trust, to put at interest a certain amount, and apply the interest and income thereof, from time to time, unto the testator’s sister. The court held that she was entitled to the interest during the first year from the death of the testator. These and other cases, I think, fully sustain the principle that where a sum of money is bequeathed to executors to be put out at interest and to pay over the income, the person for whom the provision is made is entitled to interest on the same from the" death of the testator, provided a sufficient amount remains, after deducting debts and other legacies. Our statute, providing that no legacy shall.be paid until after the expiration of one year from granting letters testamentary, unless the same is directed by the will to be sooner paid, does not stand in the way of this principle. The same provision exists in Pennsylvania; and both substantially correspond with the English law. It has been regarded, in all the cases to which I have referred, as not applying to incomes or annuities. It was not necessary, therefore, that the testator should have expressly directed, in the case before us, that the interest on the amount which he orders the executors to invest for Sarah Cooke, should accrue for her benefit from the time of her death. The law implies that such was his intent, as he did not direct that it should accrue from a later period. The exception taken upon the trial, in reference to Dr. Cooke’s claim, is untenable; as the amount of it is to be deducted from the provision made for Dr. Cooke’s children. The judgment should be reversed, and a new trial ordered. Leonard, ClerTce and SutJh erland, Justices.]