155 N.Y.S. 676 | N.Y. App. Div. | 1915
The Columbia Trust Company has filed its account as executor of the estate of George W. Crossman, deceased, the same was approved and confirmed in every respect by the decree of the Surrogate’s Court, except that it surcharged the account with the sum of $13,115.35, which amount the executor was directed to pay and distribute among the legatees. It is from this provision of the decree that the present appeal is taken.
The decedent, George W. Crossman, died January 15, 1913. On January 31, 1912, he and Hermann Sielcken entered into a partnership agreement in writing, two of the provisions of which were as follows: “ Tenth. On the thirty-first day of January in each year there shall be made a full inventory account and balance sheet in writing showing all the property, assets and liabilities, of the partnership and stating the net value of the share therein of each of the partners. Some time from and after the thirty-first day of January will necessarily be consumed in making up such balance, but all the entries therein shall be made as of the thirty-first day of January so that the balance sheet shall state the accounts, the assets and the liabilities and the share of each partner as the same were on that date.
“ Eleventh. Upon the death of either of the partners during
By the firm’s balance sheet of January 31, 1912, the net value of testator’s share in the partnership was stated as $5,014,106.32, and decedent had withdrawn thereafter $38,687.92, leaving a balance of $4,975,418.40. Under the partnership agreement, this was the amount which the surviving partner was to pay for the share of the deceased partner, with interest thereon from the date of the balance sheet at the rate of four per cent per annum. The payment was to be made, twenty per cent within three months from the date of the deceased partner’s death and the remainder at such times and in such amounts as might suit the convenience of the surviving partner, but within two years after such death. The surviving partner, Sielcken, paid on account of the decedent’s share the sum of $1,000,000 on February 7, 1913, $33,398.23 on May 2, 1913, and $4,454,117.68 on January 15, 1915, making a total of $5,487,515.91. This amount was determined upon as the entire purchase price of the decedent’s share by taking the twenty per cent of the same agreed upon by the partnership
The surcharge decreed to be paid is arrived at by charging interest on the decedent’s balance down to the date of his death, adding that to the principal sum and charging interest from that date on both principal and interest. By following this method of computation an additional interest charge of $13,115.35 is created. But we find no warrant for following such a method. The partnership agreement contains no reference whatever to the date of decedent’s death as fixing the time when interest is to begin to run. On the contrary, such time is determined as the date of the last balance sheet. Interest is then to begin and is to run, obviously not until decedent’s death, but until the survivor makes the payments required by the agreement, twenty per cent within three months and the balance within two years after such death. It will be seen that the obligation to pay interest must be found in. the agreement itself, or no interest whatever was payable until the payments became due. There being no provision that interest should be computed in any other way, it should be computed down to the times when payment was actually made as provided by the agreement.
The portions of the decree appealed from should be reversed, and it should be further modified by providing that the account of the executor be judicially settled and allowed as filed. Costs are allowed to all the parties appearing on this appeal, payable out of the estate.
Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.
Decree modified as stated in opinion, with costs to all parties appearing on appeal payable out of the estate. Order to be settled on notice.