
    In the Matter of the Final Judicial Settlement of the Account of Salvatore Messina, as Executor of the Estate of Nunziata Messina, Deceased, Appellant. Rose Lucia Massa, Respondent.
   Decree of the Surrogate’s Court of Richmond county reversed on the law and facts, with costs to the appellant, payable out of the estate, and matter remitted to the Surrogate’s Court of Richmond county for a resettlement of the executor’s account in accordance herewith. In our opinion, the executor’s account should only be surcharged with the sum of $375 which was on deposit in the Bowery and East River Bank at the time of the death of the testatrix, in the name of the executor in trust for the testatrix. It appears that the balance of the $1,919.50 received by the testatrix January 9, 1928, was used by her or with her consent and for her benefit during her lifetime and that the account of the executor should not be surcharged therewith. Lazansky, P. J., Kapper, Carswell and Tompkins, JJ., concur; Hagarty, J,, not voting.  