
    In the Matter of the Judicial Settlement of the Account of the Columbia Trust Company, as Executor, etc., of George W. Crossman, Deceased. Columbia Trust Company, as Executor, and Hermann Sielcken, Appellants; Thomas Frederick Lee, as Executor, etc., of Georgia C. Lee, Deceased, and Others, Respondents.
    First Department,
    November 12, 1915.
    Partnership — agreement that surviving partner shall purchase share of deceased partner at specified valuation—computation of interest.
    Where a partnership agreement in substance provides that, on the death of either partner, the survivor shall purchase his share, the price to be the net value of the share of the deceased partner according to the balance sheet of the last day of January next preceding his death, together with interest thereon from the date of said balance sheet at the rate of four per cent, it is error, in figuring the amount the surviving partner is required to pay to the estate of the deceased partner, to charge interest on the decedent’s balance to the date of his death and add that to the principal sum, and then to charge interest from that date on both principal and interest.
    Under the partnership agreement interest began to run from the date of the last balance sheet and continued, not until the decedent’s death, but until the surviving partner made payment as required by the agreement. No provision of the decedent’s will can be effective to alter the terms of the partnership agreement.
    Appeal by the Columbia Trust Company, as executor, and another from part of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 2d day of July, 1915.
    
      Eugene Smith and Leonard B. Smith, for the appellants.
    
      James P. Niemann and John Lindley, for the respondents.
   Dowling, J.:

The Columbia Trust Company has filed its account as executor of the estate of George W. Crossman, deceased, the same was approved and confirmed in every respect by the decree of the Surrogate’s Court, except that it surcharged the account with the sum of $13,115.35, which amount the executor was directed to pay and distribute among the legatees. It is from this provision of the decree that the present appeal is taken.

The decedent, George W. Crossman, died January 15, 1913. On January 31, 1912, he and Hermann Sielcken entered into a partnership agreement in writing, two of the provisions of which were as follows: “ Tenth. On the thirty-first day of January in each year there shall be made a full inventory account and balance sheet in writing showing all the property, assets and liabilities, of the partnership and stating the net value of the share therein of each of the partners. Some time from and after the thirty-first day of January will necessarily be consumed in making up such balance, but all the entries therein shall be made as of the thirty-first day of January so that the balance sheet shall state the accounts, the assets and the liabilities and the share of each partner as the same were on that date.

Eleventh. Upon the death of either of the partners during the existence of the partnership, the surviving partner shall purchase all the right, share and interest of the partner so dying in all the partnership business and property and shall assume all the then existing liabilities of the partnership. The price to be paid for such purchase is hereby fixed and agreed upon as follows: It shall be the amount stated as the net value of the share in the partnership of the deceased partner in the balance sheet of the thirty -first day of January next preceding his death, together with interest thereon from the date of the said balance sheet at the rate of four (4%) per cent per annum. Such purchase price shall be paid as follows: twenty per cent thereof within three months from the date of such death and the remainder at such times and in such amounts as may suit the convenience of the surviving partner provided that the whole thereof shall be paid within two years after such death. The estate of the deceased partner shall not be entitled to share in any increase or profits gained nor be liable for any losses incurred in the business after the thirty-first day of January next preceding his death but all such profits shall belong to and such losses be borne by the purchasing partner.”

By the firm’s balance sheet of January 31, 1912, the net value of testator’s share in the partnership was stated as $5,014,106.32, and decedent had withdrawn thereafter $38,687.92, leaving a balance of $4,975,418.40. Under the partnership agreement, this was the amount which the surviving partner was to pay for the share of the deceased partner, with interest thereon from the date of the balance sheet at the rate of four per cent per annum. The payment was to be made, twenty per cent within three months from the date of the deceased partner’s death and the remainder at such times and in such amounts as might suit the convenience of the surviving partner, but within two years after such death. The surviving partner, Sielcken, paid on account of the decedent’s share the sum of $1,000,000 on February 7, 1913, $33,398.23 on May 2, 1913, and $4,454,117.68 on January 15, 1915, making a total of $5,487,515.91. This amount was determined upon as the entire purchase price of the decedent’s share by taking the twenty per cent of the same agreed upon by the partnership agreement within three months of decedent’s death ($995,083.69)' and charging interest thereon from the date of the balance sheet (January 31, 1912) to the date of the first payment (February 7, 1913) at four per cent, amounting to $40,577.30, making a total of $1,035,660.98, from which the payment of $1,000,000, made on February 7, 1913, being deducted, left a balance due on the first installment of $35,660.98. The interest on this to the date of the next payment was $336.80, making a total of $35,997.78, on account of which there was paid on May 2, 1913, the further sum of $33,398.23, leaving a balance due on said installment and interest on said date of $2,599.55, the further interest on which sum to the date of final payment, January 15, 1915, amounted to $177.06, or a total of $2,776.61. The remaining eighty per cent of the purchase price, amounting to $3,980,334.72, with interest thereon from January 31, 1912, to January 15,1915 ($471,006.28), aggregated $4,451,341. Adding to this the balance of the first installment due on said date, $2,776.61, made a total due of $4,454,117.61, which Sielcken paid to the executor on January 15, 1915.

The surcharge decreed to be paid is arrived at by charging interest on the decedent’s balance down to the date of his death, adding that to the principal sum and charging interest from that date on both principal and interest. By following this method of computation an additional interest charge of $13,115.35 is created. But we find no warrant for following such a method. The partnership agreement contains no reference whatever to the date of decedent’s death as fixing the time when interest is to begin to run. On the contrary, such time is determined as the date of the last balance sheet. Interest is then to begin and is to run, obviously not until decedent’s death, but until the survivor makes the payments required by the agreement, twenty per cent within three months and the balance within two years after such death. It will be seen that the obligation to pay interest must be found in. the agreement itself, or no interest whatever was payable until the payments became due. There being no provision that interest should be computed in any other way, it should be computed down to the times when payment was actually made as provided by the agreement.

No provision of decedent’s will did, or could, alter the terms of the copartnership agreement, or fix a different date for the beginning of the interest charge. Nor is any other decree before us which at all interferes with the conclusion reached by us.

The portions of the decree appealed from should be reversed, and it should be further modified by providing that the account of the executor be judicially settled and allowed as filed. Costs are allowed to all the parties appearing on this appeal, payable out of the estate.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Decree modified as stated in opinion, with costs to all parties appearing on appeal payable out of the estate. Order to be settled on notice.  