In re the Judicial Settlement of the Accounts of Dixon

New York Supreme Court

In re the Judicial Settlement of the Accounts of Dixon

50 N.Y. St. Rep. 629

New York Supreme Court·Decided December 12, 1892·Published

Opinion

Barnard, P. J.

The executors apply to be discharged. The surrogate of Kings county granted their application. Upon the accounting it appeared that there was a bond and mortgage made to them for $20,000. This amount was held for two trust funds. One for Maria Leach for $10,000 and one for her children for the same amount. The executors claim an allowance of $225 paid by them upon a transfer of this mortgage. The mortgage was perfectly good. The trust funds were not full, but each had been depleted. The successor appointed by the court would not take the $20,000 mortgage and pay the overdrafts to the trustees. The item for the expense of negotiating the mortgage was properly rejected. The beneficiaries should not be called upon to pay for serving the two funds, especially as the successor in trust to the executors could not be compelled to take a mortgage greater than the estate and pay the trustees. The cost of the special accounting was improperly put in the petition. They asked to be discharged, and it was no more than was just that they should not charge the estate with a special accounting. The executors had good reason to be discharged on their own request without fulfilling the trust; but it was equitable that their application should not cost the funds for an account which was only an incident to their discharge on their own request

The order appealed from should be affirmed, with costs.

Dykman and Pratt, JJ., concur.

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Barnard, P. J.

The executors apply to be discharged. The surrogate of Kings county granted their application. Upon the accounting it appeared that there was a bond and mortgage made to them for $20,000. This amount was held for two trust funds. One for Maria Leach for $10,000 and one for her children for the same amount. The executors claim an allowance of $225 paid by them upon a transfer of this mortgage. The mortgage was perfectly good. The trust funds were not full, but each had been depleted. The successor appointed by the court would not take the $20,000 mortgage and pay the overdrafts to the trustees. The item for the expense of negotiating the mortgage was properly rejected. The beneficiaries should not be called upon to pay for serving the two funds, especially as the successor in trust to the executors could not be compelled to take a mortgage greater than the estate and pay the trustees. The cost of the special accounting was improperly put in the petition. They asked to be discharged, and it was no more than was just that they should not charge the estate with a special accounting. The executors had good reason to be discharged on their own request without fulfilling the trust; but it was equitable that their application should not cost the funds for an account which was only an incident to their discharge on their own request

The order appealed from should be affirmed, with costs.

Dykman and Pratt, JJ., concur.

In re the Judicial Settlement of the Accounts of Dixon, 50 N.Y. St. Rep. 629 (N.Y. Super. Ct. 1892).

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50 N.Y. St. Rep. 629 (In re the Judicial Settlement of the Accounts of Dixon) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.