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of said interest, amounting to $3,664.98, from which order an appeal was taken to the Appellate Division, where said order was reversed and the application was denied, from which order of reversal and denial an appeal is taken to this court.

Charles L. Craig for appellant. The circumstances of this case are not sufficient to take it out of the general rule that interest is payable after one year. (Wheeler v. Ruthven, 74 N. Y. 428; Matter of Martin, 106 App. Div. 50; Matter of Erving, 103 App. Div. 500.)

John S. Davenport for respondent. The testatrix, in making her will, must have had it in mind that there was a strong probability that there would not be enough in her estate to pay the legacies at the end of the year fixed by the statute. Interest was, therefore, not payable on the legacy in suit. (Dodge v. Manning, 1 N. Y. 298; Thorn v. Garner, 113 N. Y. 198.)

CHASE, J. No legacy shall be paid by an executor or administrator until after the expiration of one year from the time of granting letters testamentary or of administration unless directed by the will to be sooner paid. After the expiration of one year the executors or administrators must discharge the specific legacies bequeathed by the will and pay the general legacies if there be assets. (Code of Civil Procedure, section 2721.) Interest begins to run upon a legacy from the time when it is payable. The Revised Statutes (2 R. S. 90, secs. 43-45) from which the Code provisions were taken, changed the common-law rule by which legacies commenced to draw interest from a day one year after the death of the testator so that interest does not now commence to run until the expiration of one year from the time of granting letters testamentary. The effect of the statute was stated and authoritatively determined by this court in Matter of McGowan (124 N. Y. 526). A testator is always at liberty

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to direct in his will the time when a general legacy given by him shall be paid. Notwithstanding the statute, therefore, the time when a legacy shall be paid may be accel erated or postponed at the wish of the testator. It has been said by this court that the general rule in regard to the time when a legacy is payable does not yield to doubtful indications in the will of an intention of the testator at variance with the statute. (Wheeler v. Ruthven, 74 N. Y. 428.) There are exceptions to the general rule in regard to the payment of a legacy, and in certain cases it will be presumed that the testator intended to authorize the payment of a legacy without waiting as provided by statute. (Thorn v. Garner, 113 N. Y. 198.) The exceptions are confined to cases where by reason of the purpose of the gift it is presumed that the testator intended that it be payable immediately upon his death. It is never presumed that a testator intended that the time of payment of a legacy should be postponed beyond one year after granting letters testamentary. The presumption except as stated is that the well-known and established rule in regard to the time of payment of a legacy or of interest thereon shall control. If payment of a legacy is to be postponed beyond the time provided by statute, the intention of the testator so to postpone such payment must be found in the will itself when interpreted in connection with the circumstances surrounding the testator at the time of making his will.

Whether the assets of the estate have been fruitful or unproductive does not affect the right of the legatee. He is in the same position as a creditor and entitled to be awarded interest at the legal rate for such time as he is kept out of his demand. (Matter of Oakes, 19 App. Div. 192; Hoffman v. Pennsylvania Hospital, 1 Dem. 118; Matter of Frankenheimer, 195 N. Y. 346.)

The testratrix by the will now under consideration does not expressly postpone the payment of any or all of the lega cies given by her and we do not find any clear or other indication in the will of an intention to postpone the payment

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of such legacies or to deprive the legatees of interest from one year after letters testamentary were issued in case the same were not then fully paid. In cases where interest has been refused upon a legacy although not paid within one year after letters testamentary have been issued, it has been held that it was clear from the will that such legacy should not become payable until a later date. (Dodge v. Manning, 1 N. Y. 298; Wells v. Disbrow, 48 N. Y. S. R. 746; Van Rensselaer v. Van Rensselaer, 113 N. Y. 207; Wheeler v. Ruthven, supra.)

Where such postponement has not been found to be entirely clear, interest has not been denied upon legacies not paid within the time provided by the statute. (Matter of Erving, 103 App. Div. 500.)

It appears from the opinion of the Appellate Division that they deemed the Wheeler v. Ruthven case controlling upon them. A special reference to that case is, therefore, necessary In that case this court in commencing the opinion say, "The question is presented under peculiar circumstances," and in closing the opinion it is said, "The case, as was stated in the outset, is a peculiar one, and we proceed in deciding it upon its special circumstances." It asserts the rule in regard to the time when general legacies are payable now established by statute, and says that such rule applies in the absence of a direction in the will controlling the general rule established by the courts or other decisive indication in the instrument interpreted in the light of the surrounding circumstances of a different intention on the part of the testator. Among the peculiar circunstances in that case was the fact that the testatrix did not have any estate other than a residuary interest under the will of her father in a fund in which her mother had a life interest. The court say that it must be assumed that the testatrix understood the condition of her property, and that until the death of her mother she or her representative could not have any beneficial enjoyment of her estate, and that meanwhile the life tenant was entitled to the possession and the whole income. It also appeared that

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the testatrix gave twenty-one general legacies, fifteen of which were preferred in payment, and that all of the legacies given by her amounted to a sum substantially equal to the amount of her residuary interest in the estate of her father when the same should come into the possession of her executor, and that in case interest was paid upon the fifteen legacies from one year after letters testamentary were issued, it would result in depriving the other six legatees from any payment on account of their legacies. This was held not to be the intention of the testatrix.

In the case now before us, the testatrix had, apart from her contingent expectant interest in the estate of her husband, an estate of substantial amount from which a portion of the legacies were paid, and there is nothing in the will to indicate an intention that some of the legacies should be payable at one time and some at another, or that the legacies should become due and payable by the executor as he received the assets of the estate.

This case is not controlled by Wheeler v. Ruthven, and there is nothing in the will of the testatrix, construed in connection with the circumstances surrounding the testatrix at the time of her death, from which it can be said that she intended that the legacy to Isabella Rutherfurd should be materially reduced in comparison with the others by postponing the time of its payment, or that the testatrix intended to change the general rule in regard to the time when the legacies provided by her will should be payable.

The order of the Appellate Division should be reversed and decree of the Surrogate's Court affirmed, with costs in this court and in the Appellate Division.

CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, VANN, WILLARD BARTLETT and HISCOCK, JJ., concur.

Order reversed, etc.

THE SENECA NATION OF INDIANS, Appellant, v. CHARLES E. APPLEBY, Respondent.

Indians status of Indian nations or tribes- neither the tribe nor its individual members can maintain actions to recover lands belonging to the tribe unless authorized by statutestatutory right of Seneca nation of Indians to bring such an action.

The purpose for which actions to determine claims to real estate are authorized is to secure possession and quiet titles, for it is to the interest of the community that real estate shall be readily transferable and that the titles thereto shall be reasonably marketable.

The status of the Indian nations or tribes is anomalous. They are not citizens of the state and their tribes, though not treated as independent foreign nations, are not subject to the jurisdiction of the state to the same extent as citzens of the state or of other states. It is the settled law that neither the tribe nor its individual members can maintain an action to recover the property of the tribe without special authority. Section 55 of the Indian Law (Cons. Laws, ch. 26, § 54) authorizes the Seneca nation of Indians to bring certain actions with reference to real estate on their reservations, but provides that nothing therein contained shall enlarge or in any way affect the right, title or interest of the Seneca nation, or of such Indians in and to such reservations, as between them and the grantees or assignees of the pre-emption right of such reservations under the grants of the state of Massachusetts. The complaint herein alleges possession and ownership by the Seneca nation in fee of lands on its reservations and that defendant claims title thereto under various mesne conveyances from the state of Massachusetts, and prayed judgment that defendant be barred from all interest therein. Defendant set forth his claim as successor in interest of the right of preemption of that state to own the lands in fee subject only to plaintiff's right of occupancy. Held, that the only purpose of the statutory provision is to enable the Indian nation to protect the occupancy and possession of its lands and recover indemnity from any persons who have violated that right; that plaintiff has no right to sue upon the cause of action alleged in the complaint and the court is prohibited by statute from determining the controversy.

Seneca Nation v. Appleby, 127 App. Div. 770, reversed.

(Argued October 26, 1909; decided November 9, 1909.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered