In re Grunzfelder
268 A.D. 780
N.Y. App. Div.
1944
Check Treatment

In a proceeding in the Surrogate’s Court, Kings County, to settle the accounts of an executrix, decree modified on the facts by striking out the first, third, fourth, fifth and sixth decretal paragraphs and substituting in place thereof paragraphs consistent with the holding herein, namely, that the objections to the $9,000 bond and mortgage item shown in schedule D of *781the account be dismissed. As thus modified, the decree, insofar as appealed from is unanimously affirmed, with costs to all parties filing briefs, payable out of the estate of Matthias Trautmann, deceased, and the matter is remitted to the Surrogate’s Court for the entry of a decree in conformity with this decision. The orders dated April 18,1940, opening defaults, et cetera, are unanimously affirmed, without costs. The findings of the referee are approved and adopted, except Nos. 21 and 22, which are reversed and not found. His conclusions of.law are approved and adopted, except Nos. VI and VII. No. VI is modified by striking out the word “ sustained ” and substituting therefor the word “ dismissed ”; and as thus modified the conclusion is approved and adopted. No. VII is reversed and not adopted. It appears that the estate was without cash, and there is no evidence that even if the suggested course had been followed by the executrix the estate would have benefited. It would be hindsight to hold that during the years 1930 to 1936 the deceased executrix, who held a mortgage, should have made expenditures for taxes on certain real property and the improvement of the buildings thereon, when it does not appear that there was any benefit to be gained by such outlays. Present — Carswell, Acting P. J., Johnston, Adel, Lewis and Aldrich, JJ.