In re the Accounting of Clark

10 Misc. 2d 866, 173 N.Y.S.2d 381, 1958 N.Y. Misc. LEXIS 3419

Opinion

Christopher C. McGrath, S.

In this accounting proceeding, six parties having claims against this insolvent estate contend that they are entitled to a preference and seek to impress a trust upon the assets.

Upon the stipulated facts as herein presented, the court finds that the decedent acted in the nature of a trustee for the claimant, Chas. W. Sommer & Bro. Inc., for merchandise held by the decedent on consignment and that title to the merchandise did not pass to the decedent. In view of the foregoing the court holds that the funds of the estate are impressed with a trust in favor of Chas. W. Sommer & Bro. Inc., in the amount of $550. (Matter of Sielcken, 176 Misc. 799, 802; Matter of Kornder, 168 Misc. 553, 556; Matter of Accles, 153 Misc. 421, 424.)

There are five other claimants listed in the petition and the account as preferred creditors. They failed to file objections and appear on the return date of the citation. In the absence of any positive proof as to the source of the deposits in the decedent’s account at the time of his death, it cannot be said that any part of said account represents funds of these five alleged creditors (Matter of Gaul, 160 Misc. 123). Their claims will be allowed only as general claims.

The court fixes the fair and reasonable compensation of the attorneys for the executrix in the sum requested together with disbursements.

The claim of the funeral director is fixed and allowed in the sum of $650.

Settle decree.