69 N.Y.S. 753 | N.Y. App. Div. | 1901
Upon the settlement of the accounts of the appellant as the’ executor under the will of Phebe E. Bonnefoux, deceased, the surrogate, among other things, charged him with a loss upon the sale of some bonds belonging to the estate to the amount of $1,326, and disallowed his commissions; and, although various other questions were raised in the court below, it was stipulated that nothing should be presented in this court except the propriety of those two rulings of the surrogate. As to the first, the facts are that Mrs. Bonnefoux died in 1888, and the appellant was appointed, her executor in the month of June of that year. At that time, among other property of the estate, were four bonds of the Kansas & Pacific Railroad Company for $1,000 each, which were appraised at $4,460. They were due on the 1st of May, 1919, and bore interest at the rate of 6 per cent. Interest was paid upon them, as appears by the papers, down to 1894, at which time they became very seriously depreciated in value, and no further interest was paid, but the appellant continued to hold them until 1897, when he sold them at a price which re-
The only other question presented in view of the stipulation is whether that part of the decree disallowing commissions is proper. It is claimed by the respondent that this question is not properly raised by exceptions, and for that reason cannot be considered. We do not deem it necessary to decide upon that point. It appears in the case that the executor, after having retained these bonds for a long time, sold them with other assets of the estate amounting in the aggregate to over $15,000; that he made no effort to reinvest the proceeds, but turned them over to Ms sister, without keeping anything to show for them, and she held them, without paying interest, down to the time of the accounting. Before turmng the proceeds over to his sister, he had deposited them in his own bank to his own credit, mingling the fund with his personal assets, so that for a long time tMs money was at the risk of his own business, and subject to his debts. During that time he paid no interest to the life tenant. The whole transaction with respect to this matter after he sold this property shows the grossest carelessness on his part with regard to the management of this fund, amounting to misconduct or maladministration, and therefore I think that the determination of the surrogate to disallow commissions to the executor was proper. Stevens v. Melcher, 152 N. Y. 583, 46 N. E. 965. For these reasons tMs part of the decree of the surrogate must be affirmed, but the decree must be modified by striking out so much of the charge against the executor as is represented by the sxim of $1,326, being the amount of the loss on the inventory, so that the balance for which he shall be charged is $1,055.41, instead of $2,381.41, and, as so modified, the decree must be affirmed, without costs to either party in this court. All concur.