(dissenting):
I concur in the opinion of Mr. Justice Patterson except as to the rate of interest to which Harriet A. Hume (Whitmore) is entitled, and as to that I dissent. I think she is entitled to eight per cent,,, and that the learned justice at Special Term did not err in so holding.
By the codicils it will be observed that the $70,,000 given to Henry Southgate as trustee, “ to invest and reinvest the same, collect the income thereof and to pay the net annual income in equal quarterly payments” to Harriet A. Hume (Whitmore), was tobe, paid out of the testator’s estate “ before and in preference to any) division or distribution thereof in my said will directed.'’ Under this provision, after the payment of debts and expenses of administration, the trustee was entitled to receive from,the executor $70,000 in order that the trusts might be set up, and the executor was bound by the express provisions of the will to pay over to the trustee the first moneys that came into his hands, so that the intent of the testator in this respect might be carried out. When the testator died,, substantially his entire estate — indeed all of it that now remains — as well as that theretofore paid to Harriet A. Hume or her trustee,, was loaned to the firm of A. Hutchinson & Co.,- of Paris, and under an agreement entered into between the testator and the widow and children of Alcander, this loan drew interest at the rate of eight per cent per annum. More than enough of this loan has been paid, to set up, both trusts, together with the interest thereon at the raie of eight per cent to the time of payment.
It seems to me that a slight consideration of the two codicils,. *163when read in connection with the will, clearly shows that the testator intended that Mrs. Whitmore should, upon his death, enjoy the income derived from the two funds named and that he did not intend that any one hut her should have the same. Otherwise, there is no meaning in the words used by him, directing the payment to the trustee, viz., “ before and in preference to any division or distribution.” She was to have her income irrespective of any of the other provisions of his will. When he died the trust could not be set up because his estate, as already said, was then invested and drawing interest at the rate of eight per cent per annum, and it could not be set up until the same, to the extent of $10,000, had been paid — but the moment that such sum had been realized from the investment, that moment the executor was obligated to pay the same to the trustee. Equity always treats that to have been done which ought to have been done. The loan should have been paid and the trusts set up immediately following the testator’s death, and if it had been Mrs. Whitmore would have received whatever amount the fund earned, and the fact that it was not done immediately following the testator’s death cannot be used to her ¡prejudice. She is entitled to receive whatever interest the fund earned intermediate the death of the testator and payment by A. Hutchinson & Co. The money earned eight per cent, and if effect be given to the testator’s intent, it belongs to her.
Matter of Stanfield (135 N. Y. 292) seems to me to be directly in point. There, the testator directed his executors to invest $20,000 in bonds and mortgages or government bonds and pay over the income therefrom to his son for life, and at his death the principal to another. It appeared that the corpus of the estate was so invested at the time of the testator’s death as to produce six per cent interest. The investment directed to be made for the son not having been made, proceedings were taken by the son, in Surrogate’s Court, to compel the executor to pay to him the interest received on the $20,000 and in affirming the order directing the executor to pay a certain sum, the court said : “ Where the income of an estate or of a designated portion, is given to a legatee for life, we think it is clear that he becomes entitled to it whenever it accrues and if the estate is productive of income from the death of the testator, he can require the executor to account to him for the *164income from that time. The rule that general legacies shall not bear interest until the expiration of one year from the grant of letters testamentary, or of administration (Matter of McGowan, 124 N. Y. 526) has no application in such a case. It is, by its terms, limited to general legacies payable out of the corpus of the decedent’s estate. In the present case the bequest is not of a part of the principal of the estate, or of any property possessed by the testator in Ills lifetime, but of that which is to arise or accrue after his death from a specified fund to be set apart for that purpose. It is the income which constitutes the respondént’s legacy. He is not seeking to charge the estate with interest upon his legacy, but is simply endeavoring to secure the legacy itself, and his effort, therefore, involves no infringement of the rule regulating the payment of interest upon general legacies. * * * The gift of the income is independent of the gift of the principal; and the right to the income does not depend upon the investment, but was created and éxists regardless of it. The direction to the executor, with respect to the investment of the fund, has reference to the administration-of the trust and cannot be available -to defeat the legatee’s title to income accruing previously to the time when the investment is required to be made. Until it is made, an equivalent in value of the property out of which the fund is to be raised must be deemed to stand in place of the investment and whatever income (wises from it meanwhile belongs to the legatee to whom, it has been expressly given. * * * If the estate is sufficient for the liquidation of debts and other charges, and is so invested as to be productive of .income from the death of the testator, a bequest of income to a legatee for life must be construed to invest him with a title to such income from the date of the testator's demise, unless there is some provision in the will from which a contrary intent is to be inferred.”
Matter of Slocum (60 App. Div. 438; affd. as to this point, 169 N. Y. 153) is also in point. There the property of the testator was invested, and at the time of his death was drawing seven per cent interest. By his will he directed that his property be converted into money, invested in bonds and mortgages on, improved farming lands, and that one-third of the income derived therefrom be paid to his son during his life, and two-tliirds of such income be paid to his wife during her life. The court held that the life beneficiaries *165were entitled to all of the income accruing from the date of the testator’s death. Justice Hieschberg, delivering the opinion, in which all of the other members of the court concurred, said: “ On the principles enunciated in the Stcmjiéld case, and supported by substantially every precedent authority, the life tenants in this case should be held entitled to all the income accruing from the date of the testator’s death. There is nothing in the will to indicate a contrary intent. The direction to convert the estate into money and to invest the money in the specified securities is not a controlling condition where the income bequeathed is not, in terms, the income arising from the investments or the income accruing after the investment. * * * The testator knew that his estate was chiefly embarked in the grocery business, where it was invested at interest constituting a debt or obligation of the firm, which was pay. able to him, irrespective of profits, and which, until the conversion and investment which he directed, with whatever profits might accrue, would furnish adequate income for the support of his widow and his son’s wife and family; and consequently, in the general provision which gave them for life the entire income of his estate for support and maintenance, the income accruing before, as well as after the conversion and investment must be considered to be included, in the absence' of any provision in the will from which a contrary intent can be inferred.” (See, also., cases cited in Justice Hirschberg’s opinion, 60 App. Div. 444.) This case is important, because on appeal to the Court of Appeals that court adopted, so far as the question of interest and the time when it became payable is concerned, the opinion of the Appellate Division. (See 169 N. Y. 159.)
Applying the principle laid down in these authorities, if effect is to be given to the testator’s intent, then it seems to me that the Special Term correctly held that the trustee is entitled not only to receive interest upon the fund bequeathed to him in trust from the date of the testator’s death, but to receive interest at the rate at which the funds were invested (eight per cent) when the testator died, until the same had been paid.
I think the judgment should be affirmed.
Judgment modified as directed in the opinion, and as modified affirmed, without costs.