In re the Final Judicial Settlement of the Accounts of Bostwick , 104 N.Y.S. 69 ( 1907 )

Hirschberg, P. J.:

The only question presented on this appeal is whether the appellant,. the widow of the testator, is entitled to interest on the sum of $10,000 from the date of her husband’s death. The learned surrogate has'held that she is only entitled to interest on $4,000 'of that sum from the date of the death of' the deceased, and that the balance, that is, the sum of $6,000, is to be regarded as. a general legacy drawing interest, only from a date one year subsequent to the issuance of the letters testamentary.

The deceased and the appellant, then unmarried, entered into an ante-nuptial agreement in the year 1899, the deceased being named as party of the first part and the appellant as party of the second part. The agreement recites that the parties are about to be married and that the party of the first part “ is desirous of making a pecuniary provision for the use arid benefit of the said Emma F. Davis, his intended wife, to be in. lieu of dower, and also in lieu of all interest- in Ms estate.” The agreement then provides'as follows: “How, therefore, the said party of the first part doth hereby agree to and with the..said party of the second part that if the said mar-fiage shall be had and solemnized as aforesaid^ that the said Emma F. Davis shall have paid to her, within six months after the death of the said party of the first part, .by'his executors, the sum of four thousand dollars, with interest from the date of the death of the said party of the first part, in case the said party of the second part survives the said party of the first part. And the party of the second part' hereby assents to such pecuniary provision so made for her, and for- that purpose joins in the execution of this agreement, and hereby covenants and agrees that she will accept the payment of such sum as aforesaid iij full satisfaction of her dower in the lands of the said Henry Bostwiclc, and hereby further covenants, promises and agrees to execute and deliver any release or releases of such dower rights to the heirs, devisees or executors of the party of the first . part on demand; and dbes' hereby further covenant, promise and agree,, in consideration of such sum to be paid as' aforesaid, to make . no claim of any nature against the estate of said party of the first part in case she survives him.”

The parties were married soon after the execution of the ante-nuptial agreement. The husband died in the year 1904, leaving a will executed a. month before his death, in which he made, the following provision for his wife: .

“ First. Whereas I made an ante-nuptial agreement with my wife Emma F. Bostwick, by which I agreed to give her, and she agreed to accept, the sum of Four Thousand (4,000) Dollars in full satisfaction of any claim she might have against my estate and in lieu of dower, and whereas I have decided to i/ncrease the amount tobe given her to ten thousand (10,000) dollars.

“ How Therefore, I direct my Executor hereinafter named, to pay the' said sum of four thousand dollars to -my wife as provided in said agreement, and in addition thereto the further sum of six thousand (6,000) dollars, which sums aggregating ten thousand (10,000) dollars áre to be accepted by my said wife in full satisfaction .and in lieu of dower in my real estate, as agreed upon between us in said cmte-nuptial agreement

To me it seems quite clear that the intention of the testator was to give to his wife the interest' on the whole sum of $10,000 from the date of his death. That the intention of the testator is the controlling canon of interpretation has been often decided. The effect of the provision in the will was, as stated by the deceased, to increase the amount provided for in the ante-nuptial agreement from the sum of $4,000 to the sum of $10,000. By the agreement it had been expressly provided that the money paid, or to be paid, under it should draw interest from the date of the death of the husband, and by the express terms of the provision of the'will the additional amount is to be paid and accepted “ as agreed upon between us in said ante-nuptial agreement.” ' . ■

Tlie learned counsel for the respondents, in his brief, calls attention to the 8th clause of the will as indicative of the fact that the deceased knew how to create a legacy which' would draw • interest from his death. It is of some significance that in the 8th . clause of the will he bequeaths the sum of $500 to a .niece of his wife, the sum to be paid to her two years from his death, “ with interest thereon from my death at the rate of five per cent.” It seems to me that this is significant of the fact that he knew that a general legacy would not draw interest the first year after his death, and that' if he desired that his. wife should not receive interest on the $6,000 during that period, all he had to do was to bequeath her that sum of money as a general legacy, saying nothing about the ante-nuptial agreement, but leaving that to be enforced as it was. •

While the question is not entirely free from doubt, it'seems to me that the better and more consistent view to take is that, the purpose of the testator by the testamentary provision was merely to increase the amount to be paid under the ante-nuptial contract, leaving all the other provisions of the contract to apply to the $10,000 the same as they would have applied to the $4,000, had that amount • not been increased.

It follows that the supplemental decree should be modified by providing for the payment to the appellant of interest on the $10,000 from the death of the deceased to the time of payment, and as modified, affirmed, with costs to all parties, payable out of the estate.

Jenks, Hooker, Gaynor and Miller, J J., concurred.

Supplemental decree of the Surrogate’s Court of Dutchess county modified by providing for the payment to the appellant of interest on the $10,000 from the death of the deceased to the time of payment, and ás .modified' affirmed, with costs to all parties to the appeal payable out of the estate. . '