In re Fry — 140 N.Y.S. 592

Majority

p. 592

(79 Misc. Rep. 180.)

In re FRY. In re NASSAU TRUST CO. OF CITY OF BROOKLYN.

(Surrogate’s Court, Kings County.

January, 1913.)

Headnote

1. Executors and Administrators (§ 102^[2] )—Accounting—Interest.

Where executors have the advantage of a note given by a corporation carrying interest at intervals of six months, this note, though taken by the executors as such, must be regarded as their own individually under a finding charging them with the value thereof.

[Ed. Note.—For other, cases, see Executors and Administrators, Cent. Dig. § 420; Dec. Dig. § 102.*]

2. Executors and Administrators (§ 104*)—Accounting—Interest.

Where a surviving executor had possession of the bonds of a certain corporation, and accounts for interest thereon up to a certain date, and the corporation paid the interest on the bonds for six years more, and thereafter the bonds were sold to a reorganization committee, a charge of

p. 593

six years’ interest is proper, whether the executor received it or by ordinary diligence could have received it.

[Ed. Note.—For other cases, see Executors and Administrators; Cent Dig. §§ 423-432; Dec. Dig. § 104.^[2] ]

S. Executors and Administrators (§ 464*)—Accounting—Deceased Executor.

Items with which executors were found chargeable must be incorporated in a restatement of the account of the surviving executor, but in an accounting by the executor of a deceased executor the statement must present the liability of such executor at his death for the sums which would have been chargeable to him had he personally accounted.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. § 1989; Dec. Dig. § 464.*]

In the matter of the settlement of the account of John C. Fry, surviving executor of John C. Fry, and of the account of the Nassau Trust Company, of City of Brooklyn, executor of William H. Fry, deceased, executor of John C. Fry. Decree rendered.

Paul Bonynge, of New York City, for John C. Fry, accountant.

Charles O. Grim, of Brooklyn, for Nassau Trust Company, accountant.

Coombs & Wilson, of Brooklyn (C. W. Wilson, Jr., of Brooklyn, of counsel), for Philip J. Fry, individually and as trustee of the estate of George W. Fry, deceased.

Hart & Tompkins, of New York City (Millard F. Tompkins, of New York City, of counsel), for Elizabeth F. Hurlimann, Dorothy F. Duggan, and Edward H. Fry.

William Williams, .of New York City (John G. Jackson, of New York City, of counsel), for Charles Billett, a creditor.

The executors must be charged with $24,668.75 on account of the 55 bonds of the Turkish Bath Company, under such findings as to their dealings with the securities mentioned as will accord with the evidence.

[1] Interest on the sum last named should be charged at the rate of 6 per cent, with annual rests. The case in its general features justifies the extreme interest penalty; but, penalty or none, the accountants have the advantage of the note taken for $24,268.75, which carries interest payable at intervals of six months. This, though taken by the executors as such, must be regarded as their own individually under a finding charging them with the value of the bonds, and upon the proofs neither the surviving executor nor the representative of the deceased executor can ask that the interest to be paid to the beneficiaries be less than that which thus became payable to them.

It is not conceivable that the disposition by the executors of a portion of the estate, if unlawful, can be approved upon this accounting at the election of a portion of the persons interested. Any beneficiary may personally commute his rights in any manner agreeable to the accountants and himself, but he cannot require any adjustment of the general account which would vary from the legal effect of the evidence or the just demands of creditors or other beneficiaries.

p. 594

[2] Both executors became chargeable with six years’ interest upon the club bonds. The surviving executor had possession of these bonds. He accounts for interest thereon up to July, 1902, and the club paid interest on the bond issue generally up to July .8, 1908. Thereafter, in the lifetime of the executor now deceased, the bonds were sold to a reorganization committee of the club. The charge of six years’ interest is, therefore, necessary, whether the executors received it or with ordinary diligence should have received it.

[3] The items with which the executors are found chargeable must be incorporated in a restatement of the account of the surviving executor, but in the accounting of the executor of the deceased executor the finding and decree in these respects must be confined to such statement and direction as will present the liability of the deceased executor at his death for the sums which would have been chargeable to him if he had accounted in his own person. The account of the executor of the deceased executor so far as it affects the accountant personally must be approved.

Decree should be submitted in each proceeding in accordance with these views.

Decreed accordingly.