Campbell v. Cowdrey

By the court, Barnard, J. In the absence of an intent, either express or fairly, to be inferred from the provisions of the will, it is provided by statute that no legacy shall be paid until after the expiration of one year from the time of granting letters testamentary (3 R. S. 177, § 48, 5th ed). The testatrix by her will and the codicil thereto, has given no evidence of any intention to provide for the payment of the legacy in question before the time the law makes it payable. She has not said in words that such was her, wish or direction. She has provided first for the payment of her debts, which cannot be legally ascertained until the expiration of one year from the issuing of letters. The claim of the appellant for interest upon his legacy from the death of the testatrix must fail. The negative evidence, from the180 silence of the will, and the fair inference from the terms of the will itself, show an absence of the clear intent which must be shown before this interest could legally be claimed. The legacy is not then payable until the expiration of the year from the issuing of letters; but it is claimed that at all events there should be allowed interest on the legacy from the expiration of one year from the death of testatrix. Where the will is silent as to interest upon a legacy, none will accrue until it becomes by law the duty of the executor to pay the legacy (Bradner agt. Faulkner, 12 N. Y. Rep. 472). The decree of the surrogate must therefore be affirmed, with costs.