The question involved in this proceeding is-, whether the general legacies provided for in the will of Mary A. Redfield, deceased, bear interest at the legal rate of seven per cent per annum from the end of one year after the death, of the testator.

Mrs. Redfield died testate on October 4, 1891. The will was admitted to probate; proceedings for the contest of the-probate of the same were instituted, and a trial thereof had. before the superior court sitting with a jury. Said trial resulted in a verdict and judgment annulling and revoking the-probate of said will. A motion for a new trial having been denied, an appeal to the supreme court was taken from the-order denying the same. The supreme court reversed said order, and remanded said cause for a new trial. Thereupon said contest to revoke the probate of said will was again tried before this department of the superior court sitting with a jury, and resulted in a verdict and judgment sustaining tha *369 probate of said will. An appeal taken from this judgment was dismissed by the supreme court on the 18th day of August, 1898. On August 26, 1898, Francis E. Redfield, administrator with the will annexed of the estate of said Mary A. Redfield, rendered and filed his final account and filed therewith his petition for final distribution, which said petition sets forth the pendency of said contest as the reason why an earlier application for said distribution has not been made. Upon the hearing of said application, said Francis E. Red-field, a residuary legatee named in said will, objected to the allowance of interest upon the legacies provided for in said will, upon the groundthat the settlement of the estate had been belated by reason of said contest without any fault upon the part of said administrator.

In this contention of said residuary legatee, the court cannot concur.

The rule is well established at common law that all general legacies bear interest at the legal rate from one year after the demise of the testator, even though the condition of the estate rendered payment of the legacy impracticable and the assets of the. estate were actually unproductive. This rule is the offspring of another rule which received an early recognition in chancery, the provisions of which allowed to the estate one year, during which time the executor ought to be able to collect and realize the assets and be in readiness to discharge the obligations imposed upon the estate by the will. This latter-rule, says Lord Hardwicke speaking for the court in Beckford v. Tobin, 1 Ves. Sr. 380, survived from the ecclesiastical court; Lord Redesdale, in Pearson v. Pearson, 1 Sch. & L. 10, attributed to it a similar origin. But whatever may be the origin of the rule, it is irrevocably fixed as a general rule,, and is not now open to controversy: Sullivan v. Winthrop, 1 Sum. 1 , Fed. Cas. No. 13,600, 23 Fed. Cas. 371, 375 . A pecuniary legacy is to be regarded as a debt due from the estate at the end of one year after the testator’s death, and the legatee, when he is entitled to be paid, is in precisely the same situation as a creditor of the estate and should be awarded interest for such time as he is kept out of his demand: Austin’s Will, 19 App. Div. 192 , 45 N. Y. Supp. 984 ; *370 Sloan’s appeal, 168 Pa. St. 422, 428, 47 Am. St. Rep. 889 , 890, 32 Atl. 42 ; Hoffman v. Pennsylvania Hospital, 1 Dem. (N. Y.) 118, 122.

“The rule is founded on the principle that interest follows as an incident of, or accretion to the legacy, and not on the principle that the payment is imposed on the executor as a penalty for his default or neglect”: Esmond v. Brown, 18 R. I. 48, 49, 25 Atl. 652 .

To the same effect are, Welch v. Adams, 152 Mass. 74, 86 , 9 L. R. A. 244, 25 N. E. 34 ; Ogden v. Pattee, 149 Mass. 82, 84 , 14 Am. St. Rep. 401 , 21 N. E. 227 ; Kent v. Dunham, 106 Mass. 586, 591 ; Davison v. Rake, 44 N. J. Eq. 506, 510, 16 Atl. 227 . The right to interest grows out of the right to the legacy, and not out of a right for its recovery: Davison v. Rake, 44 N. J. Eq. 506, 510, 16 Atl. 227 .

In determining the right of the legatee to interest upon the legacy, the question of the actual posture of the estate is immaterial (Sullivan v. Winthrop, 1 Sum. 1 , Fed. Cas. No. 13,600, 23 Fed. Cas. 371, 375 , and cases therein cited); neither does the fact that the legacy could not by any diligence be collected affect the right (Ingraham v. Postell, 1 McCord Eq. (S. C.) 94, 98; Welch v. Adams, 152 Mass. 74, 87 , 9 L. R. A. 244, 25 N. E. 34 ; Davison v. Rake, 44 N. J. Eq. 506, 510, 16 Atl. 227 ; Hoffman v. Pennsylvania Hospital, 1 Dem. (N. Y.) 118, 121); nor whether the assets of the estate are productive or not (Austin’s Will, 19 App. Div. 192 , 45 N. Y. Supp. 984 ; Sloan’s Appeal, 168 Pa. St. 422, 47 Am. St. Rep. 889 , 890, 32 Atl. 42 ; 2 Williams on Executors, Am. ed. 1895, p. 743; Hoffman v. Pennsylvania Hospital, supra) ; nor will the residuary legatee be heard to complain.

“The residuary legatees are in no position to complain, for the estate is charged with the payment of the debts and the pecuniary legacies first, and not until this is done is the residue ascertained or the extent of their interest in the estate determinable”: Sloan’s Appeal, 168 Pa. St. 422, 428, 47 Am. St. Rep. 889 , 890, 32 Atl. 42 . See, also, In re Williams, 112 Cal. 521, 525 , 53 Am. St. Rep. 224 , 44 Pac. 808 .

It matters not what the obstacle interposed to the due administration of the estate may be, the rule is the same. In *371 the case of Powell v. Drake, 19 Dist. of Columbia Rep. 334, payment of interest upon the pecuniary legacies was refused upon the ground that the settlement of the estate had been delayed by proceedings to contest the probate of the will without any fault upon the part of the executor, and also upon the further ground that payment of such interest would diminish the residuary estate—a state of facts precisely similar to those in the proceedings at bar—and the court held, and we think properly, that these general legacies bore interest from the end of one year after the death of the testator. At page 338 the court say:

This rule of the common law received further expression in In re Bartlett, Petitioner, 163 Mass. 521 , 40 N. E. 899 ; In re McGowan, 124 N. Y. 526, 529, 531 , 26 N. E. 1098 , and the two cases of Guthrie v. Wheeler, 51 Conn. 208 , 212, and Welch v. Adams, 152 Mass. 74, 86 , 9 L. R. A. 244, 25 N. E. 34 , extend the right to interest to a legatee who has contested the will. The language of the opinion in the,latter case is as follows:

Counsel for the administrator and residuary legatee urged upon the court, in the hearing of the petition for final distribution, that this rule, so firmly established at common law, had been varied in this jurisdiction by the provisions of the statute’as contained in the Civil Code, sections 1368 and 1369. The former section provides that “legacies are due and deliverable at the expiration of one year after testator’s decease,” and the latter that “legacies hear interest from the time they are due and payable.” It is urged that the use of the word “payable” in the latter section is indicative of an *373 inteption on the part of the legislature to declare that interest does not commence to run when the legacy is “due and deliverable,” viz., one year after the death of the testator, but when the estate is in a condition to pay the legacy. The supreme court has declared in In re Williams, 112 Cal. 521 , 53 Am. St. Rep. 224 , 44 Pac. 808 , that the language of the statute will bear no such construction. The question involved upon that appeal was whether appellant, Mrs. Harvey, was entitled to interest upon a legacy of $10,000, given her by the will of the deceased. An examination of the record in that proceeding will show that the payment of legacies had been postponed by proceedings had for the contest of the probate of the will. Under point 3 of the brief of respondents the precise question raised by legatees in the proceedings at bar was thus presented:

With the issue thus clearly presented for its consideration the court, speaking through Mr. Justice Temple, say:

For the reasons and upon the authorities above set forth, the objection of the residuary legatee is overruled, and interest is. allowed as claimed on the legacies from one year after the decease of testatrix.