178 A.D. 23 | N.Y. App. Div. | 1917
The appellants, as executor and executrix of the last will and testament of Laura A. Klugh, deceased, presented their accounts to the Surrogate’s Court for final settlement. A reference was ordered, and on the coming in of the referee’s report a final decree was made stating’and settling the accounts and directing a distribution of the amount found to be in the hands of the accountants subject to distribution. The accountants, being dissatisfied with the decree as entered, appealed to this court where the decree was modified by allowing to the accountants certain charges which the surrogate had refused to allow. (See Matter of Garrabrant, 176 App. Div. 186; Matter of Klugh, Id. 187.) Thereupon an order was entered in the Surrogate’s Court making the order of this court the order of said-Surrogate’s Court, and fixing the amount of costs payable to the parties to the appeal. This order was entered on January 31, 1917, and on February 1, 1917, a decree was entered in the Surrogate’s Court “resettling” the former decree of that court, dated March 20, 1916, which had originally settled the accounts. The accountants moved to vacate this resettled decree, and from an order denying their motion they appealed to this court.
The order of this court did not, in terms, remit the matter
There is only one practical question raised by this appeal which requires consideration. By the resettled decree the accountants are charged legal interest upon the sums due to the several distributees frota March 20, 1916, the date of the original decree, to the date of the payment. It is not disputed that this interest greatly exceeded the interest which the money had actually earned in the hands of the accountants. -
By the original decree the accountants were found to have in their hands for distribution among the legatees the sum of $9,762.54, which was required to be divided into nineteenths, the amount payable to each legatee being specifically set forth in the decree. By the resettled decree the accountants were found to have in their hands for distribution among the legatees only $8,774.32, and the amount to be paid to each legatee was proportionately reduced. It is on these reduced amounts that the accountants have been charged full.legal interest of six per cent. This was error. Interest upon a sum directed to be paid
Of course if they had been unsuccessful in their appeal to ths court and the amounts payable to the legatees had not been reduced in consequence thereof, they would have been chargeable with full interest from the date of the original decree. (Matter of Ryer, 120 App. Div. 154.)
We see no necessity for vacating the resettled decree, but under the prayer for “other and further relief ” in appellants notice of motion the resettled decree will be amended by striking out the words “with interest thereon at the rate of six per centum per annum from March 20, 1916, the date of entry of the original decree herein ” whenever they appear, and insert in place thereof the words: “with such interest as the accountants have realized thereon,” with ten dollars costs and disbursements to appellants to be deducted proportionately from the amounts payable to the respondents.
Clarke, P. J., Laughlin, Davis and Shearn, JJ., concurred.
Order modified as stated in opinion and as modified affirmed, with ten dollars costs and disbursements to appellants. Order to be settled on notice. •