150 Ky. 667 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
J. G-. Winn was appointed executer of C. W. Howe on December 28, 1903. Howe at the time of his death had
“A personal representative, after the expiration of two years from the time he qualifies, shall be charged with interest on the surplus assets in his hands from that period, and before the expiration of two years shall be charged with all interest realized on assets.”
It will be observed that the statute provides that the representative shall be charged with interest on the surplus assets in his hands after the expiration of two years from the time he qualifies. But the statute only applies to the surplus assets in his hands. In Adams Exor. v. Bement, 96 Ky., 324, the court said:
“In our opinion it was error to charge the administrator with interest on the amount of the estate in his hands during the litigation; for, as he in due time brought the action for settlement of the estate, and held the proceeds subject to the judgment and order of court, he should not be made to pay interest in the absence of evidence that he used or made profit out of it.”
Again in Briggs’ Exor. v. Walker, 102 Ky., 359, the court said:
“On the cross appeal it is suggested that the executor should account for interest on the fund collected in March, 1894, until the rendition of the judgment in July, 1895. We think not, because it does not appear that he used the funds or made it profitable, or that he could have done so safely in view of the litigation. ’ ’
In Steele’s Administrator v. Lewis, 105 S. W., 1191, the court said:
In Pennybaker v. Williams, 136 Ky., 120, the court said:
“In response to the complaint that the administrator should be charged the legal rate of interest for the money which came to his hands, from the time he received it until the date of distribution, it is only necessary to state that his duty required him to collect and preserve the estate and make • distribution thereof as soon as he reasonably might. He was not called upon to loan out this money. He could not know when the litigation would end, or how soon he would be required to make distribution, and hence he would not have been warranted in loaning the money, except as he did upon call * * * and he should be charged only with the interest which he actually received. ’ ’
In the case at bar the proof is clear that the executor in fact earned no interest on the funds. When he qualified, suits involving large sums of money were brought against him. In some of these snits judgments were rendered against him for larger sums than the distributable balance in his hands. On appeal to this court, these judgments were reversed. (Howe’s Exor. v. Griffin, 126 Ky., 373; Howe’s Exor. v. Equitable Life Assurance Society, 137 Ky., 437.) In addition to this litigation there were other suits against the executor involving considerable sums of money. The executor deposited the money in the bank of which he was president, and kept it there until the litigation was disposed of. He then made distribution. No interest was allowed by the bank on the deposit. It is insisted that as the executor deposited the money in the bank of which he was president and a stock
It is the duty of a personal representative to use ordinary care to- make the trust funds in his hands productive of interest; that is, he should use such care in handling the trust funds as a man of ordinary prudence would use in handling his own money to make it productive of interest. The duty rest upon him from the time he qualifies. Until the expiration of two years he is chargeable with such interest as he realizes, or should realize, where under the circumstances, by ordinary care, interest should be realized. But the presumption is in his favor during this period, and he is only to be charged with interest that he did not realize, where he is affirmatively shown to have been remiss in his duty. On the other hand, after the expiration of two years, he is prima facie chargeable with interest on the surplus in his hands, and the burden is on him to show that by reason of circumstances beyond his control he was unable, in the exercise of ordinary care, to earn interest on the fund. Here, in view of the uncontradicted proof in the record, we cannot say that the chancellor erred in holding that the executor had. used ordinary care under the circumstances in which he was placed, and in view of the many litigations in which the estate was involved.
Judgment affirmed.