
    In the Matter of the Judicial Settlement of the Accounts of Frank A. Teed, as Administrator with the Will annexed of Louis B. Grant, Deceased.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April, 1894.)
    
    1. Will—Life estate—Value.
    In the absence of anything to the contary, the interest upon the value of the personal property will prima facie represent the value of the life estate therein, if it has ended.
    2. Executors, etc.—-Inventory.
    
      A. regularly made inventory is prima facie correct in respect to value as well as quantity of the property.
    3. Same.
    But, where it appears on the accounting that there are some accounts and claims in the inventory uncollected and uncollectible, such deficiency-in value furnishes some evidence of their available value as of the time of the death of the testator.
    4. Same—Interest.
    When, at the termination of the life estate, the estate is to be settled and its proceeds distributed, any appropriation of it or its proceeds or income for any purpose other than its preservation, during its settlement and distribution, is not legitimately permissible.
    Appeal by the 'New York Baptist Union for Ministerial Education from the decree of the surrogate of Chautauqua County, settling the accounts of the administrator with the will annexed of Louis B. Grant deceased, and directing the distribution.
    
      Marsenus If. Briggs, for app’lt; George Barker, for resp’t.
   Bradley, J.

The testator Louis B. Grant died May 16, 1884 leaving his will, which was admitted to probate, by it he gave to his wife his household furniture, and devised and bequeathed to her the use of his estate real and personal during her life. He gave to his brother Henry D. Grant an annuity of $5109 from and after the death of his wife.

He gave to the Cook academy an endowment of one thousand dollars payable in one year after the death of his wife.

He devised and bequeathed to - the New York Baptist Union for the endowment of the Rochester Theological Seminary all the residue and remainder of his estate, real and personal, and charged such Baptist Union with the expense of taking care of his cemetary lot in Fredonia N. Y. His wife survived him and died intestate February '6, 1887. His brother Henry did not survive hen

A prior decree of the surrogate settling the accounts was on .review reversed and re-settlement directed. Matter of Teed, 59 Hun 63; 35 St. Rep. 531. The controversy now has relation only to the personal estate. The two institutions mentioned in the will can take only one half in value, as of the time of the death of testator, of the estate. Laws of 1860 Ch. 360. The value of the personal estate, as represented by the inventory and appraisal made after his death was $ 20,896.67, to which may be added for that not included in the appraisal $272.89, making together $21,169.56. There was no judicial settlement contemplated during the life of the widow, to whom letters testamentary were issued. The debts of the testator as of the time of his death amounted to $6,977.52. The expense of the proceedings had for the accounting, as allowed were $1,821.02. And the interest received by the widow upon the personal assets amounted to $2,642.04.

In the settlement made by the decree of the surrogate the appellant was allowed the benefit of the interest upon one half of the net value of the personal property from the time of the death of the testator to that of the widow. The sum for interest so allowed was less than half the amount of the interest so received by her during that time. Upon this fact arises one question presented for consideration. To ascertain what the personal property was worth at the time of the death of the testator, the value of the life estate in it which succeeded his death must be measured. If it had not terminated when the division was sought it would have been determined by a certain known method of measurement. This was well illustrated by Judge Earl in Hollis v. Drew Theological Seminary, 95 N. Y. 166: But as the life estate 'had ended, there was no occasion to do more than to make it appear what in fact was its value. In such case if nothing appeared to the contrary the interest upon the value of the personal estate so held would prima facie represent it. Here the fact appears that the amount of interest received by the widow upon the personal assets was greater than the interest upon the value of the personal estate remaining after deducting the debts and expenses as the computation was represented by the decree of the surrogate.

The interest so received by her issued out of the personal estate which came to her use, and the amount thus by her derived from it during her life should be treated as the value of the life estate and the institutions should have the benefit of one half of it to realize one half of the personal estate of the testator, as of the time of-his death. ■ ,

It is urged on the part of the appellant that the inventory before mentioned as made determines the value of the personal property at the time of the testator’s death, because as it is insisted there is no satisfactory evidence to the contrary.

It may be true that an inventory regularly made, as this was is prima facie correct in respect to value as well as quantity of the property. Stewart’s Appeal, 110 Penn. St. 410. In the present case it concededly appeared on the accounting that of the-accounts and claims in the inventory, there were those amounting to $2,804.09 uncollected and uncollectible. And while the proceeding for settling the accounts in which this was made to appear was instituted nearly two years after the death of the widow, it may be observed that such then deficiency in value, in view of the nature of the accounts and circumstances which may be inferred furnished some evidence of their available value as of the time of the death of the testator, and they should be treated as having no such value at that time. The result of these views is that the two institutions should have of the personal estate $6,104.97 instead of $5,974.59 as determined by the decree, and after deducting the $1000 to which the Cook Academy is entitled there remains for the appellant $5104.97 to which should be added for taking care of the cemetery lot before mentioned the sum of $50 agreed upon by the parties for that purpose, making together $5,154.97.

It is also urged that the appellant is entitled to interest upon its share in the personal estate from the time of the death of the widow until that of the former decree, November 25, 1889. No reason for this seems apparent upon the facts in the record.

It appears that some time prior to October, 1885, the widow as executrix instituted proceedings before the surrogate for a judicial settlement of her accounts, and this proceeding does .not seem to have been fully concluded ; that after her death the administrator of her estate in May, 1887, instituted proceedings for the judicial settlement of his accounts, which resulted in the- decree of the surrogate directing him to hand over to the administrator with the will annexed of Louis B. Grant, deceased, all the personal estate of the latter which came to his hands and any moneys he had received thereon. He did so, and this included substantially all the personal estate left by him, and it was the subject of the accounting in question. This estate consisted mainly of dioses in action, and gny interest which had accumulated and been uncollected was in the property so delivered to the representative of the testator, and became the subject of the judicial settlement finally made by the surrogate, and whatever was collected by the latter went into his account soon after presented on application for judicial settlement, which was finally determined. The proceedings occupied some time. No satisfactory reason appears for allowing interest" under the circumstances after the time of the death of the widow.

The estate after that time was subject to no use. The right and duty then arose to have the estate settled and its proceeds distributed, and during that period any appropriation of it or its proceeds or income for any purpose other than its preservation was not legitimately permissible.

These views lead to the conclusion that the surrogate’s decree should be so modified as to award to the appellant from the personal estate the sum of $5,154.97, and as to reduce accordingly the amount directed by the decree to be paid therefrom to the respondent Elias Eorbes as administrator, etc., of Julia A. F. Grant, deceased.

And that such other modification only of the decree be made ■as may be necessary to conform it to that before mentioned, with costs to the appellant payable oat of the entire fund which is the subject of the division between the parties and derivable from, the personal estate of the testator.

All concur.  