In re the Intermediate Settlement of Account of Kirchner

132 Misc. 384, 229 N.Y.S. 638, 1928 N.Y. Misc. LEXIS 915

• Court: New York Surrogate's Court
• Decided: June 19, 1928
• Status: Published

Opinion

Patterson, S.

The contesting party asks that the executor be surcharged with the legal rate of interest on $1,750, moneys belonging to the estate which he, concededly, mingled with his private funds for a period of six months.

The accounting party concedes that he should be properly charged with two per cent on such funds but disputes the contestant’s claim that he is entitled to six per cent.

I have read the cases submitted by the executor with the result that I cannot say they bear out his contention.

In Matter of Sexton (61 Misc. 569)] one of the cases cited, the court said: “ I am not aware that any hard and fast rule can be laid down as to when an executor or administrator shall be charged with interest, as each individual case must be decided upon the facts as presented.” I think that sums up the respective contentions.

The executor concededly deposited the sum in his own personal account and to that extent he must be said to have enjoyed the use thereof to his own profit and benefit, and, hence, I think he should be charged with the legal rate of interest thereon.

The situation would have been different had he deposited the money in his name as executor and failed to account for any interest thereon. In such a case, possibly, a surcharge of two per cent might be fair, or possibly, not surcharge him with any interest whatever, but where he deposited the money in his own account and commingled it with his own funds, I think he should be charged with the maximum legal rate of interest, if for no other reason than a punitive ohe to discourage such a practice.

My disposition of it is that the executor should be charged with interest at the rate of six per cent per annum for the period during which he had the funds of the estate deposited in his personal account.