In the Matter of the Application of Edward Lehman, as Guardian of Selma Lewinski, for Payment of the Income from a Legacy to Her by the Last Will and Testament of Abraham Ostheim, Deceased. Edward Lehman, as Guardian, etc., Respondent; Moses Weil and Another, Executors, etc., of Abraham Ostheim, Appellants

In the Matter of the Application of Edward Lehman, as Guardian of Selma Lewinski, for Payment of the Income from a Legacy to Her by the Last Will and Testament of Abraham Ostheim, Deceased. Edward Lehman, as Guardian, etc., Respondent; Moses Weil and Another, Executors, etc., of Abraham Ostheim, Appellants. Legacy—payable conditionally at majority—right of the surrogate to direct prior payment of the income—reference unnecessa/ry — Laws of 1891, chap. 173. Upon an appeal by the executors of Abraham Ostheim from an order of the Surrogate’s Court of the county of New York directing the executors to pay over to the guardian of Selma Lewinski twenty-five dollars per month for her support and maintenance, it appeared that the tenth clause of the will of Abraham Ostheim was as follows: "Tenth. I give and bequeath to my granddaughter, Selma Lewinski, the child of my deceased daughter, Hannah Lewinski, the sum of five thousand dollars, to be paid to her when she arrives at the age of twenty-one years, with interest to be computed from the date of my death at five per cent per annum. Should my said granddaughter die before arriving at the age of twenty-one years, then the bequest hereby made shall go to her issue, and in default of issue, then the said bequest of five thousand dollars shall go to my legal heirs under the laws of this State.” The payment was directed to be made from the income accumulated and to be accumulated from this legacy. Held, that the legacy vested upon the death of the testator and the payment only was postponed; That the vesting was not affected by the provision that the legacy, was to be paid ultimately with interest; That the gift over, in case the legatee died during her minority, did not prevent the vesting, but denoted that the preceding" words pointed merely to the period when the legacy should become absolute in enjoyment; That if Selma Lewinski died before she reached majority her issue would take as substituted legatees, and if she died. without issue the legal heirs of the testator would take as substituted legatees; That the surrogate had authority under chapter 173 of the Laws of 1891 to make the order in question, and that the order was proper; That as there was no dispute about the facts it whs proper that the surrogate should decide the matter himself and not put the estate to the expense of a reference. Appeal by. Moses Weil and another, as executors, etc., of Abraham Ostheim, deceased, from an order of the Surrogate’s Court of the county of New York, entered- in said Surrogate’s Court on the 10th day of October, 1895, directing said executors to pay over to the guardian of an infant legatee twenty-five dollars per month during the next ensuing three years for the support and maintenance of the infant. The payment was directed to be made from the income accumulated and to be accumulated from a legacy of $5,000, given to the infant by the testator under the tenth clause of his will, which reads as follows: “ Tenth. I give and bequeath to my grandaughter, Selma Lewinsfti, the child of my deceased daughter, Hannah Lewinski, the sum of, five thousand dollars, to be paid to her when she arrives at the age of twenty-one years, with interest to be computed from the date of my death at five per cent per annum: Should my said granddaughter die before arriving át the age of twenty-one years, then the bequest hereby made shall go to her issue, and in default of issue, then the said bequest of five thousand dollars shall go to my legal heirs under the laws of this State.” J. H. Rogwn, for the appellants. Oscar Richter, for the respondent. [MAJORITY — Barrett, J.:] Barrett, J.: The gift here of $5,000 is absolute. The sum is to be paid to the legatee when she attains her majority. But the legacy vests upon the death of the testator, though payment is postponed. (Bushnell v. Carpenter, 92 N. Y. 270.) The vesting is not affected by the provision that it is ultimately to be paid with interest. It was held in Smith v. Parsons (146 N. Y. 116) that an accumulation of interest, payable to a legatee at majority, vested at once, and upon the legatee’s death during her minority, passed to her personal representatives. The intention of the testator here was not to postpone the vesting of either principal or interest, but merely to postpone. the period of enjoyment in possession, and in so postponing such period to secure to the. legatee the intermediate usufruct. The legacy is thus vested with, its? accruing-ffuit. Nor is the result changed by what follows. The gift over in case of the death of the legatee during minority instead of suspending the vesting ab initia., denotes that the prior words point merely to the period when the legacy becomes absolute in, enjoyment,, (See Mr. Bigelow’s note, p. 855 of Jarman on Wills, 5th ed.) Jarman (p. 850) says that, if the testator has given over the fund, in case the legatee dies before the time named without issue, from which it is to be inferred that the legatee is to retain it in every other case, the natural conclusion is that the word is to be read as meaning “ payable ” or “ indefeasible,” and that the gift is vested, liable only to be divested on a particular contingency. By the provision that upon the death of the legatee the bequest shall go to her issue, and in default of issue to the testator’s heirs, such issue or heirs, as the case might be, will take as substituted legatees upon the happening of the prescribed event, namely, the death of the original legatee. These ulterior dispositions do not affect the main question. They are equally appropriate, whether the legacy was vested or contingent: Consequently they throw no light upon the testator’s intention, nor do they vary the clear expression of that intention to be found in the preceding provision. The surrogate had authority, under chapter 173 of the Laws of 1891, to make the order in question. Whether it should be made , was a matter of discretion, which the record shows was fairly exercised. The surrogate was not bound to put the estate to the expense of a reference to ascertain the necessity for this trifling allowance. The petition is supported by an affidavit, while the executors rested upon an answer to the petition, merely ignoring the essential facts, and not denying what is stated in the affidavit. The order should be affirmed, with costs. Van Brunt, P. J., Rumset, Williams and Patterson, JJ., concurred. Order affirmed, with costs.