In re the Judicial Settlement of the Account of Bolton — 54 N.Y. St. Rep. 755

Majority

p. 755

In the Matter of the Judicial Settlement of the Account of Henry B. Bolton et al, Ex’rs.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

1. Executors and administrators—Accounting—Sale of machinery.

Certain machinery which was leased with the building was injured by-fire, the lessees replaced the portion destroyed, and the remaining portion was sold by the executors of the owner at auction, at which there was competition. to the adopted son of the deceased for §600. It had previously been estimated in connection with the lessees’ machinery at §50,000. Held, that under the circumstances it could not he said that a finding that the sale was fair and the price adequate wasrerroneous.

p. 756

Same—Rent of machinery.

It appeared that the premises leased was taken by the city, and an award made which included such machinery, but shortly before the sale the executors got possession thereof by agreement with the city. Held, that the executors were not chargeable with the rent of the machinery after the land was taken.

3. Same—Mortgage deficiency.

Nor are the executors chargeable with the amount of a deficiency on the foreclosure of a mortgage given to their testatrix by her husband merely to protect his title as against his creditors.

Appeal from decree of the surrogate of Westchester county, settling the accounts of the executors of Ann Bolton, deceased.

James R. Marvin, for app’lts; Alex. Thain, for ex’rs, resp’ts.

Ann Bolton died in 1882. She owned at her decease real estate in Bronxville, Westchester county, N. Y. The two executors and Wm. N. Birchel, an adopted son, held a lease from the deceased for these premises for ten years from March 1, 1880, at a yearly rent of $4,500. On these premises the lessees had carried on a bleaching business. There was machinery on the premises which wmnt with the land. The city of New York took the land for public uses in 1889. In 1887 a large part of the machinery was destroyed by fire, and the lessees replaced this machinery on their own account. The executors sold the machinery of the estate at public auction in August, 1891, for $592.82. It was a serious question on the trial whether this sale was fair. The property was mainly bought at this sale by the adopted son of deceased, William N. Birchel, and it was used afterwards with the firm machinery proper in new premises at West Fordham, by the executors and Birchel as partners. The executors, before the commissioner, had proven the value of the entire machinery proper at upwards of $90,000.

At the value put on the machinery and separating the new from the old, the estate machinery was worth upwards of $50,000. On the other hand, the old machinery had to be sold separate. It was sold at public auction where there were many people and there was competition shown on the sale. The value before the commissioner was of an entire equipment of a business. The' detached machinery would of necessity be so much reduced in value as to call for a very,large loss. The surrogate has found the sale to have been fair and under the proof that there was no evidence that it was of greater value than was paid for it. There is nothing upon which an appellate court can say the finding is erroneous. Second-hand machinery which has been through a fire, and is only made useful by additions which could not be sold with it, is of not much use except in the same business and to those who own the new part which gives any value to it. The money paid Mrs. Legett, J. L. Mills and J. W. Colwell was properly allowed; they were paid in the lifetime of testatrix at her request by the firm. The rent of the machinery after the land was taken was properly disallowed. It was, probably, property of the city of New York. The heirs seem to have got an award for it and then claimed the machinery. It was only by an agree-.

p. 757

ment with the city that the estate got the machinery and that was just before the sale of it by the executors. The rents of the coal yard were properly allowed. This yard was rented to the bleaching firm, and at the request of deceased the rents from it were not collected by the firm. She should pay the rents not collected at her request. The mortgage given by Thomas Bolton the elder to Birchel, and by him assigned to Ann Bolton, was given merely to protect the title to the land as against creditors of Thomas Bolton. The deficiency on the foreclosure by Ann Bolton against her husband’s executors is not a debt which the executors of Ann Bolton either could or were bound to attempt to collect.

The executors of Ann Bolton cannot be made chargeable with the legacy of E. Brooks to Thomas Bolton, senior. The Bolton estate had been settled, and the items had no proper place in this estate. The account between the firm who acted as agents of Mrs. Bolton in her lifetime was good evidence as against the deceased when examined and settled by her, without other voucher.

The decree of the surrogate should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.