In re the Estate of Dunn

261 A.D. 1040, 25 N.Y.S.2d 880, 1941 N.Y. App. Div. LEXIS 8638

Opinion

Decree affirmed, without costs. New finding of fact made. Memorandum: This matter being before us to be considered de novo (Surr. Ct. Act, § 309), we find on this record that the executor was not guilty of any negligence or bad faith in the handling of the estate and that the surrogate was correct in dismissing the objections to the accounts of the executor. All concur, except Harris, J., who dissents and votes for reversal and granting a new trial in the following memorandum: The proof below raises a question of fact as to whether or not in the exercise of prudence the respondent should have sold certain assets of the estate during the first seven months of administration. The court below did not pass on this question of fact but determined as a matter of law that such proof did not establish a ground for surcharge. The decree from which appeal is taken should be reversed and a new trial granted on the question of fact herein indicated. (The decree judicially settles the accounts of an executor.) Present —■ Crosby, P. J., Taylor, Dowling, Harris and MeCurn, JJ.