At common law, when a legacy was given without specifying any time of payment, it vested in the legatee on the death of the testator, though not payable until one year afterward. The legacy vested on the decease of the testator, at which time the will was deemed to speak or take effect. By the statute (2 R.S., 90 § 43) legacies are not payable until after the expiration of one year from the time of granting letters, unless directed by the will to be sooner paid, and they will not draw interest until legally payable. (12 N.Y., 472.) Therefore, interest is not payable on a legacy until a year from the granting of letters, unless it be otherwise directed in the will, either expressly or by fair implication. In this case no express direction is given, but, according to well-settled rules of construction, direction is given by just and fair inference. The testator gave to the defendant Meeker three thousand dollars in trust, to invest the same on bond and mortgage, and to apply the interest and income thereof to the use of the plaintiff during her life. The plaintiff was a minor, and, so far as the case shows, was without other provision for her support and maintenance. The testator's personal estate exceeded the aggregate of all the legacies, and was well invested on bonds and mortgages drawing interest; and he gave authority to his executors to pay and discharge the legacies and bequests made in the will by transferring and delivering bonds and mortgages belonging to his estate to the legatees. Certainly there was nothing in the will, or in the circumstances surrounding the case, rendering it impossible or improbable that it was the *Page 24 intention of the testator that the legatee or beneficiary, under the trust, should not have the income, from the fund named by him, from the time of his decease. On the other hand, the inference is fair that he so intended. It is apparent that the bequest was intended for the support and maintenance of the plaintiff, who was an infant; and there is no reason, nor is it probable, that he intended to postpone the benefit conferred for any period after his decease. In case of a legacy to a widow, in lieu of dower, it draws interest from the death of the testator when he has made no other provision for her support during the first year after his death (6 Paige, 298); and so in the case of a legacy to a child, whose support and maintenance are not otherwise provided for. (Allen, 490.) The construction claimed for this will by the plaintiff is sustained by numerous authorities, both in England and this country. (7 Vesey, 96; 9 id., 553; 1 Bland's Ch., 296; 3 Barb. Ch., 76; 6 Paige, 298; 5 Watts Serg., 30.)
The last case cited is much like the one in hand. The testator gave to his executors a sum in trust to be put at interest, and required them to apply the interest and income to the use of his sister during her natural life. It was held that she was entitled to interest on the sum from the death of the testator. So inGibson v. Bott (7 Vesey, 96), the testator placed the residue of his property in trust in the hands of his executors and directed them to keep it invested, and to pay the interest and dividends to his two daughters and their assigns for life. It was held that they were entitled to the interest thereon from the testator's decease. The case under consideration is stronger in favor of the plaintiff's claim than are some of those cited, in which it was held that the beneficiary under the will was entitled to interest from the death of the testator. Here all or nearly all the circumstances exist and are combined, which in the cases cited were severally held to control the construction of the will and to indicate plainly the intent of the testator. The estate was much more than sufficient to satisfy all the legacies. It was well invested on bonds and mortgages drawing interest at *Page 25 the testator's decease. The executors were authorized to transfer existing securities in satisfaction of the legacies. One of the executors was made the trustee to take and hold the trust fund — thus no new or especial investment was necessary. The beneficiary was an infant, with no other provision for her support or means of support, so far as the case discloses. In view of these facts, and in accordance with well settled rules of construction in analogous cases, it must be held that the plaintiff is entitled to interest on the trust fund from the decease of the testator.
The order of the Supreme Court granting a new trial was right, and must be affirmed; and, under the stipulation, judgment final must be rendered in favor of the plaintiff.
The case, however, must go back to the Special Term for the purpose of fixing the amount for which judgment is to be entered.
See leading opinion by DAVIES, J.
All concur in opinions of DAVIES and BOCKES, JJ., except GROVER, J., who dissented, and PORTER, J., who expressed no opinion.
Judgment affirmed. *Page 26