[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 300
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 301 We do not deem it essential to discuss at length the complicated questions of fact and figures presented by the learned counsel for the defendant and appellant growing out of the various accountings and the manner in which the executors, trustees and guardians have discharged their responsible duties in the management of a large estate which was greatly reduced in amount when it reached the hands of the residuary legatee, as the question of devastavit is not presented in the view we take of this case.
It suffices to say that after a careful examination of this record we are satisfied that the findings of the referee must be sustained.
It is to be reasonably inferred from this record, and after the lapse of so many years since testator's death, that the *Page 304 guardians received from the executors the balance of the estate remaining in their hands.
The counsel for the appellant urges that it may be the executors credited themselves in their final account with the amount of the legacy in question as having been set apart for the purposes of the eighth clause of the will, as the account is not in evidence.
The complete answer to this suggestion is that the parties have given a practical construction to the situation which shows this was not the fact.
The guardians paid the interest to the life beneficiary for four or five years, and after that time paid her a gross sum which enabled her to realize the interest.
This is a clear recognition that the estate received by the guardians from the executors was deemed charged with the legacy and interest thereon under the eighth clause of the will.
Under these circumstances we do not think the plaintiff was obliged to proceed against the executors in the first instance.
We are also of opinion that this is not a case where the residuary legatee can successfully defend under the principles laid down in the case cited by appellant's counsel. (Mills v.Smith, 141 N.Y. 256.)
In that case the will gave a sum to the executors to be held in trust for a beneficiary named during life, and upon his death to be distributed among his children.
On the accounting the executors were credited with this fund and the balance of estate was paid to the residuary legatee.
Subsequently the surviving child of the life beneficiary sought to recover of the residuary legatee the principal of the trust fund, the executors having failed to respond.
It was held that the defendant was not liable.
In the case at bar we have the facts reversed; the guardians received from the executors the estate charged with the burden of the plaintiff's legacy, and the residuary legatee received from the surviving guardian the residue of the estate, subject to the same liability. *Page 305
The Statute of Limitations is set up as a defense to this action. It is argued that plaintiff's legacy vested at testator's death, and that more than ten years have elapsed since the cause of action accrued.
We think this is a vested legacy (Nelson v. Russell,135 N.Y. 137; Van Axte v. Fisher, 117 N.Y. 401; Avery v.Everett, 110 N.Y. 317), but fail to discover how appellant is aided by that fact. The legacy did not become payable until the death of the life beneficiary on the 30th day of November, 1889.
The legacy of the plaintiff was a charge upon the entire personal estate, and she rested under no active duty to see that the principal sum was set apart and invested by the executors so as to earn the interest due the life beneficiary.
When the legacy became payable by the terms of the will, the plaintiff's cause of action arose.
The defense of the Statute of Limitations was properly overruled.
The appellant insists that the referee erred in allowing interest on the legacy from November 30th, 1889, the date of death of life beneficiary.
We think the point is well taken, as the defendant William H. Taylor ought not to be charged with interest, under the circumstances of this case, until demand and refusal to pay over. The record shows no such demand and refusal, and interest should be computed from the date this action was begun.
The judgment appealed from is so modified as to the computation of interest, and, as modified, affirmed, with costs.
All concur.
Judgment accordingly. *Page 306