Simpkins v. Scudder

By the will of this testator, who died in October, 1883, five nephews and nieces, all infants in law, were severally bequeathed a legacy of $25,000. Prior to the • expiration of the year succeeding the testator’s death, the father of these infants advised the executor of his purpose to procure the appointment of some person as their general guardian, who would be entitled as such to receive their legacies. There was some delay in applying for letters of guardianship, and when such letters were issued, more than a year had elapsed from the testator’s death. A decree is now about to be entered, settling the executor’s accounts and directing general distribution of the estate: and I am asked to determine whether these infant beneficiaries are entitled to interest upon their legacies, and, if so entitled, then at what rate and for what time.

*373In the case of Hoffman v. Penn. Hospital (1 Dem., 118), I held that, whenever in contemplation of law a legacy is due, interest at the legal rate begins to run upon it, even though the condition of the estate is such that its payment is then impossible; and that, until such legacy is finally paid, such interest continues to run at "the same rate, though its amount may exceed the income that the funds of the estate have yielded during the same period. I did not, in Hoffman v. Penn. Hospital, consider the question, whether an inability on the part of a legatee to take a legacy, at the time when it had become due, and when the testator’s executor -was ready to pay it, would or would not prevent the running of interest during the continuance of the inability. I think that, under some circumstances, it certainly would, and that it would under the circumstances disclosed in the case at bar, if, in the interval that has elapsed since the expiration of a year from the testator’s death, no other course had been open to the executor, except to hold the legacies in question in his hands until the appointment of a guardian.

But it is provided by §§ 48 and 49 of title 3, ch. 6, part 2 of the Revised Statutes (3 Banks, 7th ed., 2301), that, in case a legatee is a minor and has no guardian, or the Surrogate does not direct payment of a legacy to such guardian, the legacy shall be invested in permanent securities, in the name and for the benefit of such minor, and that the interest thereon shall be applied, under the direction of the Surrogate, to such minor’s education and support. Now, in the present case, it is not claimed that the *374executor is at fault because of his failure to comply with the requirements of this statute; but, while he is admittedly exonerated from personal liability, I think that the infants, in view of the fact that no investment has in fact been made for their benefit^ are entitled to interest at six per cent., from the ex-r piration of a year after the testator s death.

This conclusion is in accordance with the decision of the Supreme Court of Massachusetts in Kent v. Dunham (106 Mass., 586), and with that of the Court of Appeals of Virginia, in Lyon’s Adm’rs v. Magagno’s Adm’rs (7 Gratt., 377).