In re Wood , 1 Dem. Sur. 559 ( 1883 )

The Surrogate.

The testator directed, in the second clause of his will, that his executors should pay over and advance to his wife “a sufficient sum per annum to make up to her an income of $3,000.” These advances were to be continued until a certain residuary interest, given in trust for her benefit, should be ascertained and realized.

It seems to me, viewing the will as a whole, that the testator could not have intended that in “making up” this annual sum of $3, OOOJ there should be taken into account any income, which, apart from that furnished her by the will might come to his widow. I think that the income which the testator had in mind, as that which should be supplemented by the executors with whatever sums might be necessary for “making up ” the total to $3,000, was—1st, such income as the residuary trust fund, whereof the wife is made the beneficiary, might yield, before that fund could be finally and distinctively set apart for her benefit, and 2nd, such sums, perhaps, as might be paid to her or for her benefit, out of the $5,000 set apart by the first clause of the will. The counsel who represent her interests concedes that this second item may properly be considered in fixing the amount of her income.

- I think that, under all the circumstances of this case, the $4,000, bequeathed in trust for the benefit of the testator’s sister, should draw interest from his death. A life estate in the Twenty-seventh street house is devised, in the same clause of the will which bequeathes this legacy. That house was purchased by the decedent as a permanent home for his sister, who is now between 60 and 10 years of age. While the testator lived, she occupied it, rent free, and at Ms expense. He paid the taxes and repairs, and assumed other burdens incident to the occupation of the premises. The will gives this house and the $4,000 to a trustee to receive the income and profits of the same, and directs him, after paying thereout the annual taxes, water rents, assessments, insurance and repairs, to apply the remainder of the income and profits to the use of the sister. It provides, also, that she may, if she so elect, occupy the premises free of charge while she lives. From, the terms of this disposition, it is very probable that one of its purposes was to make provision for meeting the charges and expenses of the property for the period immediately succeeding the testator’s death, in the event that, during such period, the beneficiary should choose to occupy the house, or that, in case she otherwise elected, the rent of the premises should yield her little or no income. It seems that the sister has, in fact, continued her residence there, and that the annual income of the fund provided for her use is about equal to the annual current expenses of the premises.

The inquiry as to the circumstances under which a legacy is entitled to draw interest from the death of the testator is an interesting, and in some cases a complicated one, concerning which there is much ingenious learning in the books. After an examination of a multitude of authorities, both English and American, I find no principle or precedent which seems to preclude me, in the present case, in view of the peculiar features to which I have referred, from allowing to the claimant interest on the fund in question since the time of the death of the testator.

Decreed accordingly.