In re the Accounting of Tuttle — 10 A.D.2d 938

Majority

p. 938

In the Matter of the Accounting of Friend L. Tuttle et al., as Executors of Perry J. Fuller, Deceased. Friend L. Tuttle, Individually and as Surviving Executor of Perry J. Fuller, Deceased, et al., Appellants; John F. Moore, Jr., et al., as Executors of Anna F. Moore, Deceased, et al., Respondents.

Decree unanimously modified, on the law and on the facts, without costs, to the extent of limiting the surcharge of the executors to one half of the interest on $3,607.02 for the period from June 14, 1945 to May 17,1955, and to provide that if the claimant Friend L. Tuttle elects to add interest to the award of $5,248.42, as provided for in the fifth decretal paragraph, the executors shall be surcharged for one half the interest thereon for the period June 14, 1945 to the date of the payment thereof, and, as so modified, affirmed. It is our opinion that surcharges for the period 1940 to 1945 were improper since there had been no final adjudication -by the Court of Appeals until June 14, 1945. The surcharge can only accrue to the benefit of the parties who file objections. (Matter of

p. 939

Ellensohn, 258 App. Div. 891 .) There are four interested parties having equal interests of one quarter each in the estate. Two of the parties representing one half the estate did not appear or object. Settle order on notice. Concur — Boitean, P. J., Breitel, Valente, McNally and Stevens, JJ. [ 12 Misc 2d 640 .]

Cases cited

In re the Estate of Fuller 12 Misc 2d 640 N.Y. Sur. Ct. 1958-02-14 p. 939