In re Richardson's Estate — 23 N.Y.S. 978

Majority

p. 978

(2 Misc. Rep. 288.)

In re RICHARDSON'S ESTATE.

(Surrogate’s Court, Westchester County.

February, 1893.)

Headnote

1. Executors and Administrators — Funds Received before Death of Predecessor.

Where an executrix, prior to her death, places funds of the estate in the hands of her son, who is thereafter appointed “substituted trustee” and executor of the estate, the latter cannot be treated as an executor de son tort in respect to such funds, but the executrix’s estate is liable for any profits earned thereby before her death,

2. Same—Insurance on Lives of Decedent’s Debtors.

Such substituted . trustee is not chargeable in his account with the amount of insurance policies in his hands on the lives of debtors of deceased before he has realized on such policies.

8. Same—Interest in Unliquidated Trust Fund.

Nor is he chargeable with an interest of the estate in a fund held in liquidation by a trust company.

4 Same—Profits on Estate Funds.

Such executor is chargeable with profits realized on estate funds loaned to himself, and any bonus received on loans to others, and if he realized less than the legal interest on money used by him he is chargeable with the deficiency.

5. Same—Acts Prior to Appointment and Subsequent to Death of Predecessor-Authority of Surrogate to Review.

The acts and dealings of such executor with the estate, prior to his appointment, and after the death of his predecessor, are reviewable in the surrogate court, since the order of the court appointing him relates back to the time when he assumed control of the funds.

p. 979

6. Same—Credit of Commissions as Trustee. .

. Such executor or trustee is not entitled to credit himself in his account with a fee paid to himself, presumably on account of his commissions, since such commissions cannot be taken prior to the accounting.

7. Same—Sums Paid Bookkeepers.

Nor is he entitled to credit for sums paid for services as bookkeepers in connection with the estate accounts.

8. Same—Arbitration of Executrix’s Account — Report of Arbitrator — Addendum—When Discharged.

An executrix and those interested in the estate agreed on an arbitrator who should state the farmer’s accounts, and file his report. It was also agreed that his report should be “confirmed absolutely by the surrogate,” and be final. After the death of testatrix he filed his report, which stated the account to the date of her death. Held, that an addendum to such report, making a finding in relation to a specific fund held in trust for a legatee, should be discharged.

Petition by Anna P. E. Kirkland for the judicial settlement of the account of T. C. Eichardson as “substituted trustee” and executor of the estate of Eichardson, deceased.

In 1890 the widow of deceased was the sole survivor of the executors and trustees of deceased’s estate, the American portion of which, at that time, had been largely administered. Just before her death, which occurred January 29, 1890, she placed in the hands of T. 0. Richardson, her son, $9,010.14. Three years previously he had borrowed of her, on a call loan, $3,100. June 0, 1890, he was appointed by the court “substituted trustee” and executor of his father’s estate. Among the unadministered assets were certain life insurance policies on the lives of certain debtors of deceased, and an interest on an unliquidated fund held by the Farmers’ Loan & Trust Company. It also appeared that the trustee and executor loaned to himself funds belonging to the estate, securing the loans by collaterals. In 1892 a report was filed by an arbitrator, who had been selected by agreement between the executrix and aE parties interested in the estate, to state the account between such executrix and the estate, and file such report. It was agreed that the account stated by him should be “confirmed absolutely by the surrogate,” and be final. After filing such report, which only embraced transactions to the date of death of the testatrix, the arbitrator made a further report relating to a specific fund held in trust for a certain legatee.

Clarke & Culver, for petitioner.

W. H. Sloan and F. X. Donoghue, for the trustee.

S. E. Duffey, for Edward O. Eichardson, a legatee.

It appears to be conceded that the starting point on this accounting is January 29, 1890, the date to which the referee brought it down. The sums of $3,100 (call loan) and $9,010.14 were placed in the hands of T. C.’ Eichardson by the executrix prior to her death, and her estate is therefore liable for any profits earned by those sums prior to that event. In respect thereto this trustee or executor cannot be treated as an executor de son tort. 2 Rev. St. p. 81, § 60. The present executor is here called “substituted trustee,” but in the order appointing him he is also styled “executor.” ' It does not seem that there is any trust created by the will, now unexecuted, but paying over the fund, except, perhaps, as to a portion of Mrs. Kirkland’s share.

It is objected that the accounting party should have charged himself with the amounts of the life insurance policies now held by

p. 980

him, and still running, with the amount of the interest of the estate in the fund held in liquidation by the Farmers’ Loan & Trust Company, and with certain collaterals to loans made to himself. As they were not cash in hand, or its equivalent, he properly omitted so to charge himself, but he should have set them forth in Schedule G. When he realizes on them, he may be called upon to render a further account.

The present trustee had no right to borrow money from himself,, as such, to speculate with, and whatever profits he may have realized from the use of the money belongs to the estate, and he should be charged therewith. Any bonus he may have received for the loan of the fund also belongs to the estate. Of course, if he realized, in his speculations, less than the legal interest, he must be charged with the deficiency.

If T. C. Richardson is to be regarded simply as an executor and trustee, then it would seem his acts and dealings with the estate,, from the date of the death of his mother, and prior to his appointment, as a mere common-law trustee, are reviewable here, like those of an executor de son tort; the order appointing him relating back to the time when he assumed control of the funds. While this may seem somewhat doubtful, still, in view of the fact that surrogates now possess as great powers on the accounting of trustees as of executors, it appears to be analogous in principle to the cases of In re Faulkner, 7 Hill, 181 ; Farrell's Estate, 1 Tuck. 110 . If, therefore, claims exist in his favor, or against him, for any dealings with the estate prior to June 6, 1890, and subsequent to January 29, 1890, redress may properly be sought here.

The credit for “fee paid to T. Chesley Richardson, as trustee, $100,” presumably on. account of his commissions, is disallowed, as it is well settled that the commissions cannot be taken prior to the accounting.

The items of credit claimed for payment of services of bookkeepers should be, and are, disallowed. Doubtless the gentlemen who rendered the services were abundantly competent experts, and were entitled to be adequately rewarded; but as a rule an executor should keep his own accounts, when they are as simple as they should have been in this instance, if the executor had not rendered them more complex by his unwarranted dealings with the fund, and, if he cannot, then he should pay for the work belonging to him to do, out of his own pocket.

The addendum to the report or award of the referee or arbitrator, having been made subsequent to its submission, must be discharged.

With the exception of the criticisms and their results, as above outlined, the account is approved, and a decree will be prepared accordingly.