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In re the Judicial Settlement of the Accounts of Dixon

50 N.Y. St. Rep. 629 Court N.Y. Gen. Term Decision date 1892-12-12 English

Delivered by Barnard, P. J.

Contents

Majority

p. 629
In the Matter of the Judicial Settlement of the Accounts of Richard Dixon et al., Ex'rs.
(Supreme Court, General Term, Second Department,
Filed December 12, 1892.)

Headnote

1. Executors and administrators—Accounting—Discharge.
Where executors upon asking to be discharged hold a security which is larger than the trust estate for which it is held, and their successor refuses to receive the same, the expense for negotiating such security cannot be allowed on their final accounting.
2. Same—Costs.
Where executors ask to be discharged before fulfilling the trust, the expense of the special accounting rendered necessary thereby should not be charged to the estate.
Appeal from portions of a decree of the surrogate of Kings county, settling the accounts of the executors and former trustees of the estate of Thomas Lamb.
N. Cothren, for app’lts;
A. M. & G. Card, for guardian ad litem.

The executors apply to be discharged. The surrogate of Kings county granted their application. Upon the accounting it appeared that there was a bond and mortgage made to them for $20,000. This amount was held for two trust funds. One for Maria Leach for $10,000 and one for her children for the same amount. The executors claim an allowance of $225 paid by them upon a transfer of this mortgage. The mortgage was perfectly good. The trust funds were not full, but each had been depleted. The successor appointed by the court would not take the $20,000 mortgage and pay the overdrafts to the trustees. The item for the expense of negotiating the mortgage was properly rejected. The beneficiaries should not be called upon to pay for serving the two funds, especially as the successor in trust to the executors could not be compelled to take a mortgage greater than the estate and pay the trustees. The cost of the special accounting was improperly put in the petition. They asked to be discharged, and it was no more than was just that they should not charge the estate with a special accounting. The executors had good reason to be discharged on their own request without fulfilling the trust; but it was equitable that their application should not cost the funds for an account which was only an incident to their discharge on their own request

The order appealed from should be affirmed, with costs.

Dykman and Pratt, JJ., concur.