
    In re Estate of Richardson, Deceased.
    (Surrogate’s Court—Westchester County,
    February, 1893.)
    The widow of R., the sole surviving executrix and trustee of his will, prior to her death loaned to one T. 0. R. $3,100 belonging to the estate, and in addition placed in his hands for investment other moneys belonging thereto. By consent he was thereafter appointed " substituted trustee.” On accounting, held, that her estate was liable for any profits earned by those sums prior to her death, and in respect thereto the sub stituted trustee could not be treated as an executor de son tort.
    
    
      Held, also, that the accounting party properly omitted to charge himself with the amounts of certain policies of insurance on the lives of debtors to the estate and still running, and with the amount of the interest of the estate in a fund in liquidation, and with certain collaterals to loans made to himself, as they were not cash in hand or its equivalent. He should have set them forth, however, in his account, as he can be called upon to render a further account thereof when realized on.
    
      Held, also, that he should be charged with whatever profits he has realized from the use of the money he borrowed from the estate, or any bonus he may have received for the loan of the fund. If, however, he realized less than legal interest, he must be charged with the deficiency.
    
      Held, also, that if T. O. R. is to be regarded as an executor and trustee, his acts and dealings with the estate from the date of the death of the widow and prior to his appointment as a mere common-law trustee, are reviewable by the surrogate like those of an executor de son tort, the order appointing him relating back to the time when he assumed con- • tool of the funds..
    
      Held, also, that commissions cannot be taken prior to an accounting.
    
      Held, also, that an executor should keep his own accounts, and if he cannot, then he should pay for the work belonging to him to do, out of his own pocket.
    
      Held, also, that after a referee to pass upon an executor’s accounts has filed his report he cannot make an additional finding.
    The testator had a large estate, of which a portion was in Great Britain and Ireland and a portion in America. By his will he appointed executors and trustees in each country, who were respectively to administer the several portions of the estate. The will was admitted to probate in this country in 1865, and the widow, who was appointed an executrix and trustee, together with the other persons as executors, etc., became the sole survivor prior to 1890. The American portion of the estate had been mostly administered during her lifetime. She died January 29, 1890. In 1887 she loaned to T. C. Richardson $3,100, and immediately before her death she placed in his hands $9,010.14. From that time down to June 0, 1890, he employed the fund in his hands in various ways, and on the last named day he was, by consent of all parties in interest, and by an order duly entered, appointed what is termed “ substituted trustee.” He held life insurance policies on the lives of debtors to the deceased, and has paid the premiums thereon. The estate is also interested in a fund held in liquidation by the Farmers’ Loan and Trust Company, lie also took funds of the estate to use, and placed in lieu certain collaterals belonging to himself.
    In 1888 all the parties then interested in the estate and the executrix entered into an agreement to submit the accounts of the executors to Anthony A. Hurst, Esq.; that the account to be stated by him should be filed in this court and be “ confirmed absolutely by the surrogate;” the decision by the referee to be final, and no appeal to be taken therefrom. His report bears date September 29, 1892, and was filed in the surrogate’s office October 3, 1892, but-the account is brought down only to January 29, 1890, the date of the death of Mrs. Richardson. By that report it appears that the balance of the estate was found to be $37,603.84, but it also appears that of this sum only $18,110.14 was in hand, the remainder having been paid in unequal sums to the three children on account of their respective legacies.
    After the referee or arbitrator had made his report or award, he made, on the ex parte statement of one of the parties, an additional finding relating to a fund held in trust for the benefit of Anna P. R. Kirkland, one of the legatees.
    
      W. II. Sloan and F. X. Fonoghue, for trustee.
    
      8. E. Fuffey, for Edward C. Richardson, legatee.
    
      Gla/rTce & Culver, for Anna P. R. Kirkland, legatee and petitioner.
   Coffin, S.

It appears to be conceded that the starting point on this accounting is January 29,1890, the date to which the referee brought it down. The sums of $3,100 (call loan) and $9,010.11 were placed in the hands of T. C. Richardson by the executrix prior to her death, and her estate is, therefore, liable for any profits earned by those sums prior to that event. In respect thereto this trustee or executor cannot be treated as an executor da son tort. 2 R. S. 81, § 60. The present executor is here called substituted trustee,” but in the order appointing him he is also styled executor.” It does not seem that there is any trust created by the will now unexecuted, but paying over the fund, except, perhaps, as to a portion of Mrs. Kirkland’s share.

It is objected that the accounting party should have charged himself with the amounts of the life insurance policies now held by him and still running, with the amount of the interest of the estate in the fund held in liquidation by the Farmers’ Loan and Trust Company, and with certain collaterals to loans made to himself. As they were not cash in hand, or its equivalent, he proj>erly omitted so to charge himself, but he should have set them forth in Schedule G. When he realizes on them, he may be called ujion to render a further account.

The present trustee had no right to borrow money from himself as such to speculate with, and whatever profits he may have realized from the use of the money belongs to the estate, and he should be charged therewith. Any bonus he may have received for the loan of the fund also belongs to the estate. Of course, if he realized, in his speculations, less than the legal interest, he must be charged with the deficiency.

If T. C. Richardstin is to be regarded simply as an executor and trustee, then it would seem his acts and dealings with the estate, from the date of the death of his mother and prior to his appointment, as a mere common-law trustee, are reviewable here, like those of an executor de son tort, the order appointing him relating back to the time when he assumed control of the funds. While this may seem somewhat doubtful, still, in view of the fact that surrogates now possess as great powers on the accounting of trustees as of executors, it appears to he analogous in principle to the cases of Matter of Faulkner, 7 Hill, 181; Farrell's Estate, Tucker, 110. If, therefore, claims exist in his favor or against him, for any dealings with the estate prior to lime 6, 1890, and subsequent to January 29, 1890, redress may properly be sought here.

The credit for “ fee paid to T. Chesley Richardson, as trustee, $100,” presumably on account of his commissions, is disallowed, as it is well settled that the commissions cannot be taken prior to the accounting.

The items of credit claimed for payment of services of bookkeepers, should be and are disallowed. Doubtless the gentlemen who rendered the services were abundantly competent experts, and were entitled to be adequately rewarded, but as a rule an executor should keep his own accounts when they are as simple as they should have been in this instance, if the executor had not rendered them more complex by Ms unwarranted dealings with the fund, and if he cannot, then he should pay for the work belonging to him to do, out of his own pocket.

The addendwn to the report or award of the referee, or arbitrator, having been made subsequent to its submission must be disregarded.

With the exception of the criticisms and them results, as above outlined, the account is approved and a decree will be prepared accordingly.  