HOFFMAN V. PENNSYLVANIA HOSPITAL.

adopt, if it were sought to hold the executors upon this accounting chargeable with interest upon the body of the estate. But no such claim is here made. The distinction between the question decided by the cases above cited, and the one now presented, was pointed out by my predecessor, in Wheeler v. Ruthven (2 Redf., 495). He held that interest should be allowed upon legacies at the then legal rate of 7 per cent., and the decree which so provided was afterwards sustained on appeal, though it does not appear that the attention of the appellate court was called to this subject.

I have been unable to find any judicial decision sustaining the theory of the residuary legatees, but have found many which take the opposite view. Indeed, it seems to be well settled that whenever, in legal contemplation, a legacy is due, the right thereto carries with it, even though actual payment is then impossible, the right to interest until such actual payment, and that it is quite immaterial whether the assets of the estate have been fruitful or unproductive.

In Kent v. Dunham (106 Mass., 586), it was held that a legacy carried interest from the time when, by the terms of the will or the rules of law, it was due, although the executor had not at that time assets available for the administration of the estate, and even although he was prevented from administering by impediments interposed by the legatee himself.

To a similar effect is Martin v. Martin (6 Watts, 67). Hertford v. Lowther (9 Beav., 266) is also in point. A legacy was given to A., on condition that he should pay a certain sum to B. In consequence of litigation, A. was unable for several years to get possession of his legacy,

HOFFMAN V. PENNSYLVANIA HOSPITAL.

which meanwhile yielded no income. Nevertheless, it was held that A. was bound to pay B. interest, from one year next after the death of the testator. All these decisions manifestly rest upon the doctrine that a legatee, when he is entitled to be paid, is in precisely the same situation as a creditor of the estate, and should be awarded interest for such time as he is kept out of his demand.

That the legal rate is the proper rate has been directly determined in Wheeler v. Brem (33 Miss., 126), and in King's estate (11 Phil., 27). "The executor argued,” says the court in the latter case, "that the legatees were not entitled to the legal rate of interest, for the reason that he had deposited the moneys of the estate in a trust company, to await the time of payment of the legacies, and received but four per cent. interest on the deposits. Does this fact affect the rights of the legatees? We think not. They were entitled to be paid at the close of the year after the testator's death, and whether the amount of their legacies was placed at interest is immaterial to them. They are entitled to compensation for the delay in payment, and the only mode of compensation fixed by law is interest. We see no reason why they should not be allowed the legal rate."

This view seems to me correct, and a decree may be presented in accordance therewith.

MELCHER V. STEVENS.

NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-November, 1882.

MELCHER V. STEVENS.

In the matter of the estate of PARAN STEVENS, deceased.

It seems, that, previously to 1870, the Surrogate's court in New York county, as in other counties, had no general power of revising its own decisions upon the ground of error, either in law or in fact.

Code Civ. Pro., § 2481, subd. 6, giving to a Surrogate, in or out of court, power "to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error or other sufficient cause," does not authorize the court to sit in review of its own decisions, as upon an appeal

After a decision, upon exceptions to a referee's report on executors' accounting, which was the result of a full consideration of the questions at issue between the parties, certain of the latter, being dissatisfied with the decision, applied to the Surrogate's successor for a reargument, contending that the same was clearly erroneous as to certain matters specified, and based upon a misapprehension of the facts established by the evidence.

Held, that, assuming the court as then constituted to entertain essentially different views of the merits of the controversy from those formerly declared, this would furnish no sufficient cause for allowing a new discussion, with a view to a new determination, and that, accordingly, except as to certain clerical errors appearing, the application must be denied. The considerations governing the determination of a motion, to open a judgment or an order, are equally applicable to the question of granting a rehearing in a case where the decision has not culminated in a formal decree.

APPLICATION by John L. Melcher and others, executors of, and trustees under decedent's will, for a reargument of exceptions to referee's report on the executors' accounting; opposed by Mrs. Stevens, widow of decedent, and executrix of his will. The facts appear sufficiently in the opinion.

MELCHER V. STEVENS,

BURRILL, DAVISON & BURRILL, for executors.

GEORGE ZABRISKIE, for trustees.

MAN & PARSONS, for Marietta R. Stevens.

THE SURROGATE.--This is an application for a reargument of the questions arising upon the report of the referee, who was appointed by my predecessor to examine and pass upon certain accounts, filed by the executors and by the executrix of this estate. Exceptions were filed to the referee's findings, and were heard by Surrogate Calvin, who rendered a decision upon which no decree has as yet been entered.

The executors of the testator, the trustees of Mrs. Stevens and the trustees of the residuary estate, are dissatisfied with this decision, and have applied to the court for a reconsideration of the questions which it determines. The matters in controversy between the parties, and in regard to which it is claimed that the late Surrogate made an erroneous disposition, are the following:

First. Three items aggregating $125,000, being moneys paid to the Dime Savings Bank, in reduction of a mortgage of $425,000 on premises known as the Stevens apartment house, which had been transferred to Mrs. Stevens' trustees, on account of the trust of one million dollars created for her benefit by the will.

Second. An item of $5,950, paid as commissions to a broker for negotiating a transfer, to the New York Life Insurance Company, of the mortgage just referred to, after it had been reduced to $300,000.

Third. An item of $30,750 expended at various times

MELCHER V. STEVENS.

for repairs upon the apartment house, after it had been transferred to the trustees of Mrs. Stevens.

[As to all the amounts thus far specified, the main controversy, between the executors and trustees on the one hand, and Mrs. Stevens on the other, was whether or not these disbursements should be charged to the milliondollar trust.]

Fourth. An item of $20,000 paid by the executors to Mrs. Melcher personally, she being one of the cestuis que trust of the residuary estate.

Fifth. Several items, amounting in all to over $4,500, with which the executrix credited herself, on account of certain litigation in Boston.

Sixth. An item of $486.28, charged by the executrix against the estate on account of insurance, disallowed by the referee, and allowed in part by the Surrogate.

Seventh. An item of $300, for plumbing in the apartment house after the transfer to Mrs. Stevens' trustees. Eighth. Three other items, credited to the executrixone of $100, which is claimed to have been included twice in the account, another of $20, for architect's services, and another of $20, for surveying premises Nos. 228 and 230 Fifth avenue.

It is urged, by the counsel for the executors, that the decision of my predecessor is clearly erroneous as to certain of the matters above specified, and that such decision. was based upon a misapprehension of the facts established by the evidence.

Upon a careful examination of the testimony, taken by the referee in this proceeding, and of the mass of papers and pleadings on file, I am led to believe that the decision of Surrogate Calvin was the result of a full con