Holmes v. Holmes.

owns a costly yacht, built and used by him for his own pleasure, and has valuable furniture. He is about fifty years of age, and seems to be fully capable of doing business successfully. The master, in fixing the alimony, took into account the income which the defendant could derive from his personal services in attention to business. Though it was urged in the defendant's behalf on the argument of the exceptions, as a reason why that element should not have entered into the calculation, that he is infirm in body-that infirmity is congenital, and he has, notwithstanding it, for years engaged in and prosecuted business so successfully that, with the aid of his wife, he has, from a very small beginning, acquired a handsome competence, entirely by means of business pursuits. That his infirmity is not such as to prevent him from engaging in business is evidenced by the fact that it does not hinder him from engaging in aquatic sports, in which he is one of the acknowledged leaders. He did not undertake to give an account of his property before the master, and did not submit himself to examination there. No injustice is done to him by accepting the estimates made by the master, and on which he has based his recommendation. The proof is that the complainant has contributed to a very great and (for a wife) unusual extent to the acquisition of the property which the defendant owns; that she has constantly attended to the business in almost every way, and that to her industry and assiduity, her economy and self-sacrifice, the defendant's success in business is, to a very great degree, attributable. He has been adjudged in this cause guilty of infidelity to his marriage vows, and a divorce has been decreed accordingly. It is but just that his wife should receive from the estate which is, to so great an extent, the result of her own labor and self-denial through many years, a reasonable amount for her support. The sum awarded by the master appears to have been carefully and judiciously fixed. It does no injustice to the defendant. The award for the support and education of the minor children is based on the

Barnes v. Danforth's executors.

agreement on which a decree by consent was entered between the parties in the previous suit brought by the complainant for alimony, by which she was to receive from the defendant a stipulated sum for her support, and theirs also. That decree was in full force when the bill in this cause was filed. Moreover, no objection is made to the report on the ground that allowance is ordered for the support of the children, but only as to the amount of the allowance, that it is excessive. The exceptions will be overruled. The payments will commence from the date of the decree of divorce, and the defendant will be credited on the alimony with any money which he may have paid under the order for temporary alimony in respect of time subsequent to that date. The alimony and the other payments hereby directed to be made will be charged on the defendant's real property. He has ceased to reside in this state, and has not only left the interest on the encumbrances on the property unpaid, but also the taxes. There will be a receiver unless he shall give satisfactory security for the payment of the taxes and the interest due on the mortgages, and costs and execution fees in the foreclosure suits, in twenty days from the filing of the decree which may be made on this decision.

SARAH BARNES

v.

THE EXECUTORS OF CHARLES DANFORTH, deceased.

A legacy given to a trustee as compensation for her services, to be rendered, although given on condition of her giving security, forms no exception to the general rule that all legacies are payable one year after the testator's death, and bear interest from that time.

On written submission of question.

Barnes v. Danforth's executors.

Mr. William Barnes, of New York, for the legatee.

Mr. William Pennington, for the executors.

THE CHANCELLOR.

The question submitted is, whether the legacy given to Sarah Barnes by the third codicil to the will of Charles Danforth, deceased, bears interest, and if so, from what time. The bequest is in these words:

"I give and bequeath to Sarah Barnes, sister of Dr. Orson Barnes, the sum of $5,000, in full compensation for her services as trustee of the estate of my grandchild, Sarah L. Barnes, but not to be payable to her unless her brother, Dr. Orson Barnes, should die before fulfilling the said trust, or unless, upon such death, she accepts and enters upon the execution of said trust, and not to vest in her until she actually enters upon the execution of said trust. Upon entering upon the execution of said trust, she shall give such security, not to exceed the amount of $50,000, as my executors think sufficient for the protection of my said grandchild; and if she cannot give such satisfactory security, let the executors keep the property and apply it themselves for my said grandchild's benefit, according to law and my will."

The duration of the trust, which is of the person and estate, is until the grandchild shall attain to the age of twenty-five years. Dr. Barnes died before the testator. The latter died in or about the month of March, 1876. Miss Barnes gave the required bond on the 21st of June following. There is nothing in the language or character of this bequest to take it out of the general rule that where no time is fixed for payment, the legacy is payable at the end of one year from the death of the testator, and bears interest accordingly. The testator, in a former part of the codicil, had appointed Miss Barnes trustee of the grandchild in case of the death of Dr. Barnes (who was the child's father) before completing the trust. In the bequest he guards against the construction that the $5,000 were intended as an absolute legacy to her, by declaring that they are not to be payable to her unless Dr. Barnes should die before completing the trust, and she

Barnes v. Danforth's executors.

should accept the obligation of the trust and enter upon the execution thereof; and he adds that the legacy is not to vest in her until she shall give the required bond. The language neither necessitates nor leads to the conclusion that the testator intended that the legacy should be payable when the legatee should enter on her duties as trustee. He does not in terms, or by inference, provide that the legacy shall be payable when the legatee shall have duly entered upon the execution of the trust. In the second codicil to the will he provides for the payment of other legacies immediately after his death. He fixes no time for payment. of the legacy to Miss Barnes, or the legacy which he gives to one of his executors as compensation for his services in settling the estate. Nor does the fact that the legacy to Miss Barnes was given as compensation for her services to be rendered as trustee, take the case out of the general rule. Though it was given for compensation for services, it was for services to be rendered, and it was optional with the legatee whether she would accept the trust and so become liable to perform the services or not. In Church at Acquackanonk v. Erecutors of Ackerman, Sax. 40, it was held that a legacy given to a widow in lieu of dower was within the common rule, and bore interest only after one year from the testator's death.

The legatee in the case under consideration is entitled to interest on her legacy from the expiration of one year after the death of the testator.

Vroom v. Marsh.

DAVID G. VROOM

v.

MARY F. MARSH.

A wife is entitled to alimony pendente lite, on a bill filed by her husband to annul their marriage on the ground of duress, which the wife denies.

Bill for decree annulling marriage. On petition for temporary alimony and counsel fee.

Mr. B. Williamson, for the defendant.

Mr. S. C. Mount, for the complainant.

THE CHANCEllor.

This is an application for alimony pendente lite, and counsel fee. The complainant files his bill for a decree annulling the marriage between him and the defendant. He, of course, admits a marriage de facto. He alleges that he was compelled, by duress, to enter into the contract. The fact that he is before this court denying the validity of the marriage, and in this proceeding seeking to annul it, is not, of itself, enough to relieve him from the support of the defendant pendente lite; for, as before stated, he admits that there was a de facto marriage, which is still subsisting. North v. North, 1 Barb. Ch. 241. The defendant, by her answer, denies any participation in, or knowledge of, the alleged duress, or of the existence of it; but declares that she understood at the time that the marriage was wholly voluntary on the part of the complainant. There will be an allowance of five dollars a week for ad interim alimony, with a counsel fee of one hundred dollars.