In re the Judicial Settlement of the Account of Morgan

Ordinarily a legacy, where no time of payment is fixed by the will, is not payable until one year after the granting of letters. There are some exceptions! how*516ever, to this rule. The one bearing upon the question here presented is, where a legacy is left by a parent to a child by way of support, for whose maintenance no other provision, is made and who, unless interest be allowed, is without income intermediate the death of the testator and the end of a year from the granting of the letters (2 Redf. on Wills, 467, and n.). The facts in this case do not seem to bring Mrs. Valentine’s claim of interest within this exception. The testator devised to her real estate of the estimated value of about $16,000. At the time of his death, the affidavit presented by the executor shows that she was the owner of some real estate in Brooklyn, and that he had borrowed from her $200, for which she held his promissory note. So that, taking into consideration these facts in connection with the facts of the devises made to her by the will, it would be incorrect to hold that no other provision was made for her other than the legacy, or that she was without income during the year. According to her ideas, such income may have been insufficient for her support in a .style she desired.

Beside, she had an able-bodied husband whose_ duty, whatever his inclination may have been, was to provide her •a suitable support. Nor was this all. She had two sons, men grown, and in some kind of business, upon whom rested, in connection with their father, a natural, if not a legal, obligation to provide for her wants. Her case, it will be thus seen, is very different from that, of a child destitute of all other means of support other than the legacy. _ There is nothing contained in the will, nor in the surrounding circumstances to indicate that this legacy was given for the purpose of maintenance. Her claim is deemed untenable, without allusion to the further fact that she has sold a portion of the real property devised to her for $4,000.

The tender of the amount of the legacy and interest, to the legatee, which she refused to accept, must be given its legal effect. If the tender were of sufficient amount, it will bar any claim for interest from that time, as effectually here, as if she had sued to recover her legacy in a court of law.

The decree will be prepared in accordance with the above views.