
    Kings County.
    Hon. J. I. BERGEN, Surrogate.
    April, 1885.
    Lyendecker v. Eisemann. In the matter of the estate of Adam Eisemann, deceased.
    
    “Where a man having a family” dies, leaving a widow, the appraisers are authorized to set apart for her (1) the articles of personal property specifically enumerated in 2 R. S., 83, § 9, as amended in 1874; (2) “and also other household furniture which shall not exceed one hundred and fifty dollars in value ” (id. subd. 4); and (3) “ necessary household furniture, provisions or other personal property, in the discretion of said appraisers, to the value of not exceeding one hundred and fifty dollars ” (L. 1842, ch. 157, § 2).
    Where an executor or administrator has only received, and not paid out, funds of the estate, he should be allowed therefor commissions at one half the legal rate.
    Hearing of objections to the account of Margaret Eisemann, a superseded administratrix of the estate of decedent, interposed by Margaret Lyendecker, her successor. The facts are stated in the opinion.
    Lorenzo Lovejoy, for the accounting party.
    
    A. Simis, Jr., for objector.
    
   The Surrogate.

The decedent, Adam Eisemann, died .on October 29th, 1884. Letters of administration were granted to his widow, Margaret Eisemann, on November 18th, 1884, and were revoked on February 12th, 1885. On February 27th, 1885, Margaret Lyendecker was appointed in her stead.

It appears, from the inventory on file, that the appraisers made an appraisement of the personal property which the decedent left at the time of 'his death amounting to $2229.70, and set apart the articles therein mentioned, to the widow, not exceeding in value $50, and $150 in cash. To this item the contestant objects. I have examined the question, and find that, by chapter 157 of the Laws of 1842, the. appraisers were authorized to set apart, for the use of the widow and family of the decedent, household furniture, provisions or other personal property, in the discretion of the appraisers, to the value of not exceeding $150, in addition to the articles specified in the Laws of 1824; that, subsequently, by an act passed in 1874 (ch. 470), the original act of 1824 was amended, and among other things subdivision 4 of § 1, as amended, provides that certain additional articles, and also other household furniture which shall not exceed $150, in value, shall not be deemed assets, but shall only be stated in the inventory without being appraised. This act of 1874 in nowise repeals the act of 1842, but both must be read and. construed together.

I, therefore, think that, where a decedent leaves a widow or minor children, the appraisers are authorized to set apart the articles specified in chapter 157 of the Laws of 1842, or the sum of $150, and, in addition, the articles specified in chapter 470 of the Laws of 1874, and household furniture to the value of not exceeding $150. In schedule C. of the account, the administratrix credits herself with having paid $50 appraisers’ fees. That I think, under the circumstances, should be reduced to $30. She testified that she had paid the appraisers’ fees to her counsel, but the appraisers testified that they had never received them. In the same schedule, she credits herself with $25, counsel fee. Inasmuch as her administration of the estate had been conducted so loosely as to require her letters to be revoked within three months after the same were granted, I think the sum paid by her to her counsel should be disallowed.

On the day of her appointment, she drew from the savings bank, in which the funds of the decedent were deposited, $2205, and gave the same to her attorneys. It was not required for the use of the estate, except possibly a few dollars to pay for disbursements. I think she should be charged with interest at the rate of four per cent, upon said amount, from the time of its withdrawal from the savings bank to date—that being the rate of interest the same would have earned if permitted to remain in the bank.

In regard to the compensation claimed by the administratrix, she should be allowed commissions at one half the legal rate, for the reason that she has only received the fund, and it can only be paid out by the administratrix subsequently appointed in her stead.  