SCHMITT V. KAIRS. "youngest child then living" should reach the age of twenty-one years; that the other half of the proceeds of such sale should be suffered to accumulate and be from time to time invested, and that such accumulations, together with the whole of the original proceeds of such sale, should be divided-in the language of the will"between my said children who shall be then living and the lawful issue of any who may have died leaving child or children, equally, when my youngest child then living shall be twenty-one years of age; and in case any of my said children shall die before my youngest child then living shall be twenty-one years of age leaving lawful issue, such issue shall take the share of its deceased parent." The deceased left six children, of whom all are now living and three are of age. Counsel for the trustees insists that the circumstances of the infants and the widow are such as to make unnecessary any allowance for maintenance. Without passing upon this question, it seems to me that, on the face of the will itself, there appear insurmountable obstacles to granting the prayer of this petition. 1st. The adult children, in case they shall be alive when the "youngest child" attains his majority, will be entitled in their own right to share in the fund and its accumulations, and entitled also to take by substitution a portion, at least, of the share of such of the other children of the testator as may in the meantime have died without issue. Now, these adult children are not parties to this pro. ceeding, and do not appear to have consented to the granting of any allowance for maintenance. Indeed, even if such consent were procured, it would apparently prove unavailing. SCHMITT V. KAHRS. The right of the possible issue of each of the several children of the testator to the share of his parent, in the event of such parent's dying during the continuance of the trust, cannot be extinguished by any consent or waiver (In matter of Davison, 6 Paige, 136; In matter of Ryder, 11 Paige, 185; In matter of Turner, 10 Barb., 552; Deen v. Cozzens, 7 Robt., 178; Ex parte Kemble, 11 Ves., 604; Errat v. Barlow, 14 Ves., 202; Turner v. Turner, 4 Sim., 430). 2d. It is doubtful what is the meaning of the expression "the youngest child then living," which occurs several times in the will. If it means the youngest child who should be living at the testator's death, then it may be urged, with some force, that that particular child is entitled to take in any event, and that, so far as he is concerned, his share, even in the event of his death before attaining his majority cannot be diverted, by the provisions of this will, to his surviving brothers and sisters. And it may, accordingly, be claimed as a necessary inference, that, if such an interpretation of the expression "the youngest child then living" be accepted as correct, the claim for maintenance should be at least sustained so far as relates to this particular child. But the will is by no means clear in this regard. It is not, for example, a strained or unnatural construction of its terms to conclude that the testator, in his reference to the coming of age of his "youngest child then living," had in mind something very different from that which has just been suggested; that he intended that the accumulations should continue until such time as the coming of age of that one of the children (whichever it might be), who should in fact live to be of the age of twenty-one years, HOFFMAN V. PENNSYLVANIA HOSPITAL. and be the youngest child then living. In other words, it may be that the word "then" refers, in point of time, not to the death of the testator, but to the coming of age of such one of his minor children as might then be the youngest child, even though he had become such by the death of one or more of his younger brothers or sisters. This presents the serious consideration whether the accumulation thus directed is not such an accumulation as is directly prohibited by the statute (Rev. Stat., part 2, ch. 4, tit. 4, §§ 3 and 4; 3 Banks, 7th ed., 2257). Upon the final accounting of these executors, they were directed to retain, as trustees under the will, the principal and accumulations in which the children are interested. But the questions above discussed were not then determined, and manifestly cannot be determined in this proceeding for the lack of necessary parties (Riggs v. Cragg, 89 N. Y., 479). The mction must, therefore, be denied. Ordered accordingly. NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-November, 1882. HOFFMAN V. PENNSYLVANIA HOSPITAL. In the matter of the estate of SYLVANUS W. GODON, deceased. Whenever in contemplation of law a general legacy is due, the right thereto carries with it, even though actual payment is then impossible, the right to interest until payment is made, and it is quite immaterial whether the HOFFMAN V. PENNSYLVANIA HOSPITAL. assets of the estate have been fruitful or unproductive. The legatee is in the same position as a creditor, and is entitled to be awarded interest for such time as he is kept out of his demand. The only mode of compensation, fixed by law for the delay, is allowance of interest at the legal rate. The distinction, as to rate, between a claim of interest by a legatee, as against those entitled to the residuary estate, and the charge against a personal representative, on his accounting, for moneys uninvested or misapplied,-pointed out. APPLICATION by Bertha Hoffman and others, general legatees under testator's will, for allowance of interest on their legacies, in decree of distribution. The facts appear sufficiently in the opinion. CROSBY & HOFFMAN, for Bertha Hoffman, general legatee. LORD, DAY & LORD, for Pennsylvania Hospital of Philadelphia, residuary legatee. CEPHAS BRAINERD, for William A. Smith, executor. C. M. MARSH; BENEDICT, TAFT & BENEDICT; STEARNS & CURTIS; MCDANIEL, WHEELER & SOUTHER; BLATCHFORD, SEWARD, GRISWOLD & DA COSTA, TAYLOR & FERRIS; VAN WINKLE, CANDLER & JAY; ARNOUX, RITCH & WOODFORD, and WILLIAM A. W. STEWART, for legatees. THE SURROGATE.-This estate being now ready for final. distribution, the question has arisen as to the amount of interest which the executor should allow to certain general legatees. The time for which interest is to be calculated is not the subject of contention, but at what rate the computation should be made. It is claimed, in behalf of those entitled to the residuary estate, that the rate should not be more than four per cent. This claim rests upon the fact that, since the legacies in question became payable, the estate, though skillfully and prudently managed, has yielded an average annual income of not more than four per cent. And so it is argued that it is inequitable for the legatees to be HOFFMAN V. PENNSYLVANIA HOSPITAL. allowed as interest a larger sum than has actually accrued to the estate by the delay in discharging the legacies. In opposition, it is contended that the rate, at which interest should be computed, is in no way dependent upon the amount of income which the estate has earned, but that the legal rate of six per cent. must be allowed as of course. The cases which are cited in support of the views of the residuary legatees are plainly not decisive of the point under discussion. In King v. Talbot (40 N. Y., 94), the Court of Appeals determined the rate of interest which, under the circumstances of that particular case, should be charged against an executor upon moneys of his testator's estate which he had devoted to investments unauthorized by law. As it appeared that the executor had acted in good faith, believing that his course was both lawful and prudent, the court, in the exercise of its discretion, charged him with interest at one per cent. less than the lawful rate, partly upon the ground that if there had been the strictest compliance on his part with the requirements of the law, no larger income than that would probably have been realized. Shuttleworth v. Winter (55 N. Y., 624) was a similar case. It was there decided that an administratrix ought not to be charged with seven per cent. interest, when she had in fact received but four or five, unless it appeared that she had personally used the funds of the estate, or might by reasonable diligence have obtained a higher rate of interest. To substantially the same effect is Haskin v. Teller (3 Redƒ., 323). The doctrine of these cases I should unhesitatingly |