79 N.Y. 136, Brown v. Knapp

Citation:79 N.Y. 136
Party Name:SAMUEL HERBERT BROWN, by Guardian, etc., Respondent, v. ODLE C. KNAPP as Administrator, etc. et al., Appellants.
Case Date:December 02, 1879
Court:New York Court of Appeals

Page 136

79 N.Y. 136

SAMUEL HERBERT BROWN, by Guardian, etc., Respondent,

v.

ODLE C. KNAPP as Administrator, etc. et al., Appellants.

New York Court of Appeal

December 2, 1879

Argued Nov. 21, 1879.

Page 137

[Copyrighted Material Omitted]

Page 138

COUNSEL

William H. Robertson, for appellants. Defendant being a foreign executor the court had no jurisdiction over him. ( Metcalf v. Clark, 41 Barb., 45, 49; Gulich v. Gulich, 33 Id., 92; In re Well, 11 Hun, 124.) The testator having fixed the time for the payment of the legacy in question, it begins to draw interest from that date only; the exception which some of the cases have made in favor of a child where no provision is made for its support cannot be invoked in this case. ( Lupton v. Lupton, 2 J. Chy., 614; Van Bramer v. Hoffman, 2 J. Cas., 200; Wigram on Wills, 343; King v. Talbot, 40 N.Y. 76.) The court erred in deciding that the plaintiff was entitled to interest at the rate of seven per cent per annum, and also to compound interest. ( Williamson v. Williamson, 6 Paige, 298; Talbot v. King, 40 N.Y. 76; Loeschigk v. Addison, 19 Abb., 169.)

Gilbert O. Hulse, for respondent. The court below had jurisdiction of this action. ( Tunstall v. Pollard's Adm'r, 11 Leigh, 1, 25; Bryan v. McGee, 2 Wash. C. C. R., 337; Pugh's Ex'rs v. Jones, 6 Leigh, 310; Swaringen v. Pendleton, 4 S. & R., 389; Dowdale's Case, 6 Co., 46; Cro. Jac., 55; Evan's Adm'r v. Tatem, 9 S. & R., 252; Campbell v. Tousey, 7 Cow., 64; McNamara v. Dwyer, 7 Paige, 239;

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Brown v. Brown, 1 Barb. Chy., 189; Parsons v. Leyman, 20 N.Y. 103, 125; Despard v. Churchill, 53 Id., 192; Dawes v. Royalston, 9 Mass., 337; Richards v. Dutch, 8 Id., 506; Gulick v. Gulick, 33 Barb., 92.) The legacy given to the plaintiff in the will of Samuel Brown, deceased, carries interest from the death of the testator, and the plaintiff is entitled thereto for his maintenance, education and support. (2 Williams' Exr's [7th ed.], 1239, 1428, 1429; Heath v. Perry, 3 Atk., 102; Dundas v. Wolffe Murray, 1 Hem. & M., 425; Acherly v. Wheeler, 1 P. Wms., 783; Harvey v. Harvey, 2 Id., 21; Nicholls v. Osborn, 2 Id., 419; Taylor v. Johnson, 2 Id., 504; Beckford v. Tobin, 1 Ves., 308; Lowndes v. Lowndes, 15 Ves. Chy., 301; Mills v. Robarts, 1 Russ. & Myl., 555; Chambers v. Goldwin, 11 Ves. Chy., 81; Hill v. Hill, 3 Ves. & Beames, 183; Brown v. Temperly, 3 Russ. Chy., 263; Mole v. Mole, 1 Dick., 310; Leslie v. Leslie, Lloyd & Gould's R., 1; Boddy v. Dawes, 1 Keen's Chy., 362; Magoffin v. Patton, 4 Rawle, 119; 2 Roper on Leg., 190, chap. 20, § 3, and 192, § 4; Shudal v. Jekyll, 2 Atk., 516; Pinney v. Faucher, 3 Bradf., 198; Cook v. Meeker, 36 N.Y. 18, 19.) Where the testator is a parent of, or stands in loco parentis to a legatee, whether the legacy be vested or contingent, if the legatee be not an adult, interest on the legacy will be allowed as a maintenance from the time of the death of the testator, if there is no other provision for that purpose. ( Ackerly v. Vernon, 1 P. Wms., 783; Hill v. Hill, 3 Ves. &. B., 183; Mills v. Roberts, 1 Russ. & M., 555; Leslie v. Leslie, 4 Lloyd & Gould R.; Rogers v. Soutten, 2 Keene's R., 598; Wilson v. Madison, 2 Y. & C. Ch., 372; Russell v. Dickson, 2 Dru. & W., 133; Harvey v. Harvey, 2 P. Wms., 21; Indedom v. Northcote, 3 Atk., 438; Chambers v. Goodwin, 11 Ves., 2; Brown v. Temperly, 3 Russ. Chy., 263; Mole v. Mole, 1 Dick., 310; McDermott v. Healey, 3 Russ. Chy., 264, note; Wynch v. Wynch, 1 Cox, 433; Donovan v. Needham, 9 Beavan, 164; Rudge v. Wiswall, 12 Id., 357; In re Rouse Estate, 9 Hare, 649.)

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EARL, J.

Samuel Brown, the testator, died in October, 1867, at Greenwich, in the State of Connecticut, where he had for many years resided. He left a will which was proved and admitted to probate in that State, in which are the following provisions: He gives his wife the use of his dwelling-house and of one-third of his farm. He gives his daughter the sum of $4,000, to be...

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