#### Annie B. Lyon, App’lt, *v.*The Industrial School Ass’n of Brooklyn, E. D., Resp’t.1

*(Court of Appeals, Second Division,*

*Filed June 25, 1891.)*

1. Wills—Legacy—Interest on, when allowed.

When there is a legacy to a minor child, or to an infant, as to whom , the testator is *in loco parentis,*and such legatee has no other provision nor any maintenance, in the mean time, allotted by the will, the legacy, although payable at a future day, carries interest from the death of the testator.

2. Same.

It is sufficient for the operation of this rule, that the testator has voluntarily assumed, in reference to the legatee, such a relation similar, in some respects, to that of parent, that it may be presumed that he did not intend to leave the legatee without support.

Appeal from a judgment of the supreme court, second department, entered upon a submission of a controversy made pursuant to § 1279 of the Code of Civil Procedure.

*John A.*Taylor, for app’lt; *Joseph A. Burr, Jr.,*for resp’t.

1

 Affirming 24 N. Y. State Rep., 443.

Haight, J.

The plaintiff was a niece of Bliphalet Lyon, and at the age of eight weeks was, with the 'consent of her father, taken into the family of Bliphalet Lyon and wife, where she continued to reside and be supported until the death of Mrs. Lyon on the 27th day of April, 1873. Mrs. Lyon left a last will and testament, which has been duly proved and admitted to probate in the office of the surrogate of the county of Kings. The will, among otjher things, provides:

“ I give and devise to my adopted daughter, Annie Lizzie Lyon, . the sum of five thousand dollars, to be paid over to her when she shall have arrived to the age of twenty-five years. All the rest, residue and remainder of my real and personal estate, I bequeath to my beloved husband, Bliphalet Lyon, to have and, hold for his own use and benefit during his natural life, and upon his death the same to be given to the Industrial School Association of Brooklyn, eastern district, to be applied to the uses and purposes of said association.”

She appointed her husband sole executor of her will. After her death he entered into and- took possession of her entire estate, both real and personal, saving only the other legacies provided *925for in the will, and continued in the use, possession and enjoyment of the same and of all the rents, profits, interests and income thereof until his death, which occurred on the 23d day of March, 1883. Since his death the defendant has accepted and been in the possession and enjoyment of the entire estate of the testatrix. After the death of Mrs. Lyon the plaintiff was supported by Mr. Lyon until his death, who, by his last will and testament, gave her upwards of $10,000. The father of. the plaintiff is still living. He has never formally surrendered his parental rights or control of the plaintiff nor been released from his parental obligations to her, but has never contributed to her support since she was taken by Mr. and Mrs. Lyon with his consent The plaintiff arrived at the age of twenty-five years on the 27th day of August, 1888.

■ The question presented upon this controversy is, whether the plaintiff is entitled to interest upon the legacy given to her by Mrs. Lyon.

It will be observed that the will does not in express terms provide for the payment of interest nor does it create a trust If, however, it is apparent that it was the intention of the testatrix that the plaintiff should have interest, it is the duty of the court to so decree. The general rule is that when a time is specified in the will for the payment of a legacy and there is no direction as to interest, the legacy will carry interest only from the time it is payable. *Thorn*v. Garner, 113 N. Y., 198; 22 N. Y. State Rep., 692; *Van Rensselaer*v. *Van*Rensselaer, 113 N. Y., 207; 22 N. Y. State Rep., 947 ; *In Matter of Accounting of McGowan, as Ex'r, etc.,*124 N. Y., 526; 36 N. Y. State Rep., 686.

But to this rule there is an exception,' and it is well stated by Earl, J., in the case of *Brown*v. *Knapp,*79 N. Y., 136-141. He says: “When there is a legacy to a minor child or to an infant as to whom the testator is *in loco parentis*and such legatee has no other provision nor any maintenance in the mean time allotted by the will, the legacy although payable at a future day, carries interest from the death of the testator. This rule is based upon the presumption that the testator in such case must have intended that the legatee should in the meantime be maintained at his expense, thus discharging his moral obligation or carrying out his benevolent design. It is not needed for the application of this, rule that the testator must have been under a legal obligation at the time of his death to support the legatee. Such obligation of a testator to support his own child continues only during his life.

“ It is sufficient for the operation of this rule that the testator has voluntarily assumed in reference to the legatee such a relation similar in some respects to that of parent, that it may be presumed that he did not intend to leave the legatee without support.”

In that case the testator had bequeathed to his grandsom the sum of $3,000, to be paid to him when he shall have attained the age of twenty-one years. The father of the legatee had entered the military service of the United States and died in such service. Before entering such service the testator had said, to him that if *926he never returned, his wife and son would always be cared for. After the death of the legatee’s father, the testator took him and his mother to live with him and supported them until his death. It was held that he was entitled to interest upon his legacy from the death of the testator. See, also, *Acherley*v. *Wheeler,*1 P. Wms. Rep., 783 ; *Hill v.Hill,*3 Vesey & Beames, 183 ; *Donovan*v. *Needham,*9 Beavan, 164; *Rogers*v. *Soutten, 2*Keen, 598; *Lupton*v. *Lupton, 2*John. Ch., 614 ; *Keating*v. *Bruns,*3 Dem., 233; *Neder*v. *Zimmer,*6 id., 180; *In the Matter of Goble,*30 N. Y. State Rep., 944.

At the death of the testatrix the plaintiff was an infant of but ten years of age. It does not appear that she possessed other estate. The will makes no other provision for her maintenance during her minority. Although she was not formally adopted, the testatrix had treated her as her child and assumed towards her the relation of a parent So far the plaintiff is brought within the exception to the general rule to which we have called attention. But there existed other facts which, to our minds, had an important bearing upon the intention of the testatrix. As we have seen, the testatrix’s husband was the uncle of the plaintiff. She was taken into his family and supported and cared for by him until his death. He had voluntarily assumed towards her the relation of a parent It is evident that he was a man of property, from the fact that he made her a legatee under his will, and that she received upwards of $10,000 from his estate. The testatrix, knowing of the relation that existed between her husband and the plaintiff and of his ability and intention to care for and support her, may very properly have entrusted her to his care without intending that the interest upon the legacy bequeathed to her should be paid for that purpose.

For these reasons we conclude that interest was not payable upon the legacy until the plaintiff arrived at the age of twenty-five years. The judgment should be affirmed, with costs.

All concur.