The will of John F. Slater bequeathed the sum of one million dollars to his son-in-law, Francis Bartlett, the plaintiff in this suit, in trust to pay the income arising therefrom, or such portion thereof as he, the .trustee, might consider best, to the testator’s granddaughter, the daughter of Mr. Bartlett, during her natural life.
In another clause of the will this bequest is made payable to the trustee, by the executors of the will, within one year after the death of the testator, at the convenience of the executors, and they are authorized to pay it in stocks or bonds belonging to the estate at their cash value, or in cash, as might be preferred.
*106The sole question in the ease is, whether the .trustee is entitled to interest on this bequest from the death of the testator, or from the end of one year thereafter.
The general rule on the subject is thus stated in Williams on Executors :—“ When no time of payment of the legacy is fixed by the will, the executor is allowed one year from the death of the testator to ascertain and settle his affairs; at the end of which time the court, for the sake of general convenience, presumes the personal estate to have been reduced to possession. Upon that ground interest is payable from that time, unless some other- period is fixed by the will. Nor will interest be payable from an earlier date though there is a direction in the will to pay the legacy as soon as possible.” 2 Williams on Exrs., 1424. See also 2 Redfield on Wills, 465, 471; 1 Swift’s Digest, 455.
There are some exceptions to this general rule. One is, where a legacy is given in satisfaction of a debt. Another is, where a legacy is given to the testator’s minor child, or to one to whom the testator is in loco parentis, and there is no other provision for the maintenance of the legatee. Another is, where the legacy is an annuity; and still another, where the bequest is of the residue of the testator’s estate, or of some aliquot part thereof, in trust to pay the interest or income to the legatee for life with remainder over at his-death.
In all these cases the rule is to allow interest from the death of the testator. But no one of these exceptions to the general rule applies to the case under consideration. It is claimed, however, that the legacy, being given to a third person to pay the income to the beneficiary during her natural life, is in the nature of an annuity, and that so the rule in relation to annuities should apply.
The language of the bequest is as follows :—“ To pay the income arising therefrom, or such parts thereof as he [the trustee] may consider best, and at such times as he sees fit, to my granddaughter during her natural life.” This bequest grants discretionary power to the trustee to pay to the beneficiary such portion of the income as he may consider *107best. He may pay over the whole, or any portion thereof, or none at all, according to his discretion. The time of payment, too, is left wholly to the discretion of the trustee. The bequest has but few of the elements of an annuity, which is “ a yearly payment of a certain sum of money granted to another in fee, or for life, or for a term of years, charging the person of the grantor only.” 2 Williams on Exrs., 809.
In the case of Booth v. Ammerman, 4 Bradford, 129, the court says :—“ The income or interest of a certain fund is not an annuity, but simply profits to be earned, and, although directed to be paid annually, that relates only to the mode of payment, and does not change the character of the bequest. In such a case it does not become the duty of the executor to invest the principal fund until the end of a year, and the interest does not become payable until the end of the second year.” Redfield (on Wills, vol. 3, 186,) says :—“ In the case of an annuity bequeathed, it begins from the death of the testator, and the first payment becomes due in one year thereafter; but when the interest or net income of a certain sum is given, it will not begin to run till the end of the first year from the death of the testator, and the first .payment consequently becomes due in two years from that date.”
Lord Eldon, in Gibson v. Batt, 7 Ves., 96, drew the distinction between an annuity and a legacy for life, which has been cited in every thoroughly considered case since. He says :—“ If an annuity is given, the first payment is payable at the end of the year from the death; but if a legacy is given for life, with the remainder over, no interest is due till the end of two years. It is only the interest of the legacy; and till the legacy is payable there is no fund to produce interest.”
We think it is clear that the legacy in question cannot be regarded as an annuity.
The trustee further claims that the clause in the will which declares that “ the legacies as aforesaid are to be paid within one year from my decease, at the convenience *108of my executors, and said executors are authorized to pay the same in stocks and bonds belonging to my estate at their cash value or in cash as may be preferred,” shows that the testator intended that the legacy in question should be paid at some period or periods during the year, and not after the expiration of the year. He thus presents the point in his brief:—“ The period of payment within the year was to be governed by the convenience of the executors, and, as bearing upon that convenience, payment in the bonds and stocks of the testator was distinctly authorized. The case as submitted shows that, after payment of all debts and other legacies, there existed in the hands of the executors interest-bearing and dividend-paying bonds and stocks largely in excess of the sums necessary to create the trust fund. Can it be said that the testator intended that the interest and income of these stocks and bonds should be retained by the executors and added to the corpus of the estate until the last day within the year after his death, and then that the fund should be paid to the trustees in those stocks and bonds or in cash? We submit that, fairly construed, it indicates an intent that the cestui que-trust should enjoy the interest and income of the trust fund before the .expiration of the year.”
Still the will expressly gave the executors one year after the death of the testator in which to pay the legacy to the trustee. Payment on the last day or last hour of the year would be within the will. That payment may be made at the convenience of the executors can make no difference. They were to be the judges of their convenience. Whenever they should make payment within the year, it would be presumed that then was the convenient time for payment.' They were only restricted to the year. But the will declares that payment may be made in bonds and stocks at their cash value at the time payment shall be made within the year. The bonds were interest-paying bonds, and the stocks were dividend-paying stocks. The cash value of such bonds and stocks, at any particular time, is made up of their value as representing principal or *109capital and the accruing interest or dividend. The value thus varies with the nearness or remoteness of the time when the next dividend will be declared or the next interest become payable. But the will takes no notice of this enhancement of value. The payment of one million dollars may be made in their cash value at the time of such payment; no more and no less. And if payment shall be made in cash on the last day of the year after the death of the testator, the payment shall be of the sum of one million dollars; no more and no less. The will declares that such payment in either mode shall be full payment of the bequest. How then can interest be claimed by the terms of the will ?
This would seem to be a full and complete answer to the further claim of the trustee, that a proper construction of the bequest in question shows it to be a bequest for the maintenance of the granddaughter of the testator, and that so the bequest carries interest from the death of the testator, not by presumption of law, but by the will itself.
The answer is, that if the trustee is right in his claim, that the will itself shows the bequest to be given for the maintenance of the granddaughter, still the will itself declares that the payment of one million dollars in cash, or in stocks and bonds at their cash value, at anytime within one year from the death of the testator, shall be full payment of the bequest; not full payment of the principal sum, leaving the interest unpaid, but full payment, principal and interest, if there could be any interest. Surely the testator had the right to say how large the bequest should be which he left for the maintenance of his granddaughter, if the trustee is correct in his construction of the will.
But is he correct in that construction? He bases his claim upon the word “best” in the bequest. He presents the point thus:—“ The will provides, whether the ability of the father to furnish maintenance for his daughter should exist or not, that some part of the income shall, during the infancy of the daughter, as well as afterwards, be paid to that daughter. It is to be such portion as that father shall *110consider best. Best for whom ? Not best for the trustee, to diminish his own natural liability, but best for the infant. What else could be best for such infant but education and maintenance ? ” But many other things might be best. It might be best to withhold rather than to pay. Manifestly, the great concern of the testator, in bequeathing this very large sum of money, the interest of which would be sixty thousand dollars per year, was the welfare of his young granddaughter, who was just entering into womanhood. There was greatly more danger that her father, the trustee, would pay her too much of this vast income during her minority than that he would pay her too little; and during such time it seems to be clear that the word “ best,” as used by the testator, had more reference to withholding the income than to paying it. The plain meaning is,—pay her only what you think best. We think the trustee’s construction of the bequest is not correct.
We therefore advise the Superior Court that the plaintiff is not entitled to interest till the end of one year from the death of the testator.
In this opinion the other judges concurred.