Appeal of Townsend & Hartshorne

Mr. Justice Sterrett delivered the opinion of the court, [273] After ordering her executors to sell at public or private sale, according to the best of their judgment and discretion, all her real estate, and authorizing them, in like manner, to sell, assign and transfer all or any part of her personal property, the testatrix directed them, out of the proceeds, to pay over to trustees, one of whom was also an executor, the súm of $24,000, in trust to invest the same “in good, safe interest bearing securities, and the same to sell and change from time to time as they may see fit, and to collect and receive the interest, dividends and income thereof, and the same either to pay over to, or apply and appropriate to and for the maintenance, education and support of” the appellees, children of her deceased niece, “in equal shares and proportions for and during their respective natural lives, and with authority to pay the same to the guardians of such as are minors,” etc. She further authorized her executors, in payment of this and other legacies, to transfer securities and investments belonging to her estate. At the time of her decease, testatrix owned interest bearing securities and investments ample for that purpose ; and, in payment of the legacy, appellants transferred a portion of these securities, on which interest had accrued during the year next after her decease, and was received by them. Claiming that the appellees were not entitled to interest on the legacy during that period, the appellants retained for the benefit of the residuary estate, the interest thus collected by them on the securities transferred to the trustees; and thus arose the paramount question in the case, viz., whether' the legacy in trust for the maintenance, education and support of the cestuis que truslent, bears interest from the decease of testatrix or only from the expiration of a year thereafter. On the authority of Hilyard’s Estate, 5 W. & S., 30, and kindred cases, the learned president of the Orphans’ Court sustained the contention of the appellees, and in this we think he was right. The general rule undoubtedly is that pecuniary legacies are not payable until a year after the testator’s death, and in the meantime do not bear interest, but to this there are some well recognized exceptions, such as a legacy by a parent to his child, or by one in loco parentis, by way of maintenance, where the possession of the principal is deferred; a legacy to a widow in lieu of dower, where no other means for her support is provided, and also where interest in the nature of an annuity is given, if by implication from the terms of the instrument, the legacy is given for support: Cooke v. Meeker, 36 N. Y., 15. In this case it is said, when a sum is left in trust with direction that the interest and income shall be applied to the use of a person, such person is entitled to the interest thereof from the date of the testator’s decease, [274] especially when it appears to have been the intent of the testator that the legacy should be paid by a transfer of securities bearing interest at the time of his death. Under such circumstances, all the authorities concur in holding that the accruing interest upon the securities, from the time of testator’s death, should go to the use and maintenance of the beneficiary. In the case before ns, the clearly expressed intention of the testatrix was to provide maintenance, education and support for the children of her deceased niece, and there appears to be no reason why it should not be carried out. It is no answer to say they are too remotely related to her. There is nothing to prevent a testator from providing for the maintenance and education of strangers to his blood, whether they be infants or adults. If his intention so to do is clearly and unequivocally expressed it should be respected. We have no doubt it was the intention of the testatrix in this case that her beneficiaries should enjoy the benefit of the means provided for their maintenance and education, immediately upon her decease, and not be postponed for a year or two thereafter; and, upon that ground, if no other, the decision of the court below, as to the question of interest, should be sustained. The appellees are not concluded by the confirmation of the executors’ account or distribution of the small balance then in their hands. The claim that is now urged was not then presented nor passed upon in that proceeding. Nor are they concluded by the dismissal of their petition for review. That was expressly done without prejudice to their rights, if any they had, in another form of proceeding. The entire estate of testatrix, both real and personal, was made a fund for payment of the legacy in question. The former was not sold by the executors, for the reason that they as residuary legatees elected, as they had a right to do, to take the land instead of the proceeds thereof, but that did not relieve the real estate in their hands from the burden imposed upon it by testatrix. Having rightly sustained the claim of appellees to interest on the legacy, from the date of testatrix’ decease, the learned judge was clearly right as to the proper mode of enforcing payment. The petition, it is true, was informal and irregular, ■ but it was amendable, and he had a right to treat it as amended. There appears to be no error in the decree, or in any of the proceedings leading thereto, that requires correction. Decree affirmed and appeal dismissed at the costs-of appellants.