11 Paige Ch. 142 | New York Court of Chancery | 1844
If the surrogate came to the right conclusion, from the testimony of E. II. Jacot the attorney, that the respondent had mixed the money belonging to the estate of his intestate with his own, and had used it, so that he had it not on hand when he was called on for payment, he might unquestionably have been charged with interest, according to the settled rule of this court in such cases. But a mere neglect by an administrator to invest moneys which he may be called upon to pay over to the distributees at any moment, would be no ground for charging him with interest, if the money was kept in bank or otherwise, ready to be paid over when called *for. Indeed, the administrator would not be authorized to loan the fund, to which adult distributees were immediately entitled, at their risk, and without authority from them.
Even if the respondent had rendered himself liable for interest, by using a portion of the trust fund for a time, the surrogate was still right in considering this settled account as conclusive be
The power of attorney was sufficient to authorize this settlement. Besides, the"-presumption is that the attorney communicated the facts which were known to him to- his constituent; and the acquiescence of the latter in the account as stated and settled, by his attorney, without objection, for nearly a year, ought of itself to be Considered a waiver of the claim to interest.
The sentence and decree of the surrogate, which is appealed from, must therefore be affirmed with costs.