88 N.Y.S. 798 | N.Y. App. Div. | 1904
On the accounting the accounts of the executors Were surcharged with the sum of $38,184.57 and they appeal fró,m that part of the decree thus surcharging their accounts. The correctness.: of the decision of .the surrogate in this regard depends upon transactions between the executors, the surviving partners. and the son of the
By virtue of the copartnership articles the "surviving partners, at the expiration of the period fixed for the continuance of the business' by the firm, had the right to purchase the interest of their deceased partner. The interest of the estate in . the firm was purchased by the surviving partners pursuant to this provision.. In making the settlement the value of the interest of the estate was agreed upon on the understanding that -the disbursements made by the surviving partners for the estate which had' not ¡been adjusted were to
Mrs. Stark claims that Aubrey should be treated as a creditor of the estate to the extent of his entire interest froth the date of his majority, on the theory that the executors then elected at his request to pay over to him his entire interest, and that he be allowed interest until the time the payments were actually made to him. This would deprive Aubrey of participating in the profits of the copartnership. When he became of age the executors did consent that he should receive his entire interest as soon as the condition of. the estate would permit the payment thereof. They did not, however, bind ' themselves to pay it over at any particular time nor did the parties come to an understanding as to the value of his interest or as to how the same should be ascertained. His share,, aside from that part of the estate.invested in the partnership, was more than $50,000, and ■ the executors received interest on this as well as large amounts of interest and surplus profits from the' partnership. Hone .of his interest was in form withdrawn from the firm capital and no other interest was in form, substituted for it, nor does this appear to have been considered. The executors made payments to him from time to time from the surplus income in their hands. It may be that at times he received more than his share of the surplus income and of the- principal not invested in the firm; but it would be very diifieti.lt to determine that fact, andj even if so, none¡ of the parties appear to have been prejudiced, for he has been charged the same rate of interest on the payments made to him as the executors were receiving on the surplus income of his sisters in their hands, which, on account of the infancy of one and incompetency of another, had, with the exception of sufficient for their support and maintenance (Matter of McCormick, 40 App. Div. 73; affd., 163 N. Y. 551), to be left in the hands of the executors or trustees. If a loss had been sustained by the continuance of the partnership we apprehend that Aubrey’s sisters would urge with considerable force that the consent of the executors to pay over his entire share was so indefinite, and
At the time the petition for an accounting was filed Mrs. Meyer, an executrix, was in Europe and she did not join in the petition. She was, however, made a party to the proceeding and it appears that the accounting involved the entire property of the estate. It has been treated as an accounting merely by the petitioning executors and the court has reserved one-half of one commission to await an accounting by her. She claims that the accounting should be treated as a final accounting by all, and that the reserved commission should be allowed and paid to her. It appeal’s that the principal services were rendered by the executors Lauterbach and Lowenstein. The court accordingly, in apportioning the commissions pursuant to the provisions of section 2730 of the Code of Civil Procedure — the personal property of the estate exceeding in value $100,000 — allowed one full commission to each of the executors Lauterbach and Lowenstein, and one-half of one commission to Aubrey. Aubrey claims that Mrs. Meyer rendered no services, has not accounted, does not intend to account, that nothing remains to require an accounting by her and that, therefore, he should receive the reserved commission. We are of opinion that the accounting was complete. Mrs. Meyer rendered some services, and they were of the same general nature as those rendered by Aubrey. We
It follows, therefore, that the decree should be modified by striking out the surcharge of $38,184.57 made to the accounts of the executors, by directing the payment of the reserved commission to Mrs. Meyer, and by charging the executors with $8,242.36, which they allowed the surviving partners to deduct from the purchase price of the interest of the estate in the partnership, and interest thereon from the date of the settlement with the surviving partners, with the privilege, however, to the executors of a rehearing before the Surrogate’s Court on this question, and as modified affirmed, with separate bills of costs to each appellant and respondent appearing separately, one-fourth thereof to be paid ©iit of each of the four trust funds for the children in the hands of the executors.
Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ„, concurred.
Decree modified as stated in opinion, and as modified affirmed, with costs to each appellant and respondent appearing separately, to be paid as directed in opinion.