
    (90 Misc. Rep. 249)
    In re HORWITZ’S ESTATE.
    (Surrogate’s Court, New York County.
    April, 1915.)
    Executors and Administrators <S=>102—Investment oe Funds—Accounting.
    An executor, under a will which directs a certain sum to be invested in first mortgages on real estate in a named county, has no authority to invest such funds in purchasing real estate owned by his wife, and where he does so the account of his administratrix will be surcharged with the amount so invested; Laws 1897, c. 417, § 9, providing that, in the absence of special authority in the , will, an executor may invest only in certain bonds and municipal obligations and in loans on realty.
    [Ed. Note.—For other cases, see Executors .and Administrators, Gent. Dig. § 420; Dec. Dig. <S=>102.]
    <g=»Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    Bill for an accounting against the administratrix of Julius Horwitz, deceased executor of Joseph Horwitz. On objections to account. Account settled.
    Emanuel van Dernoot, of New York City, for petitioner.
    Leonard Klein, of New York City, for contestant.
   FOWLER, S.

This is a compulsory accounting by the administratrix of Julius Horwitz, the deceased executor of Joseph Horwitz. Objections were filed to the account, but upon the hearing all were withdrawn with the exception of two, which have to do with the alleged improper investment of $12,665.43 by the deceased executor.

The will of testator bequeathed to the executor the sum of $25,000 in trust for testator’s wife, which sum was directed to be invested in first mortgages on real estate in New York county, and the income therefrom to be paid to the cestui que trust during her life. The remainder over upon her death was to become part of the residuary estate.

The trust created by the. will of testator was administered by the executor for the benefit of the testator’s wife until her death in February, 1909. After her death the executor distributed to the residuary legateés part of the money due them, the last payment having been made November 19, 1909. In May, 1908, the accounting administratrix conveyed certain premises which she owned to her husband as executor of Joseph Horwitz, for the nominal consideration of $1. The account discloses that the deceased executor invested in all in these premises the sum of $12,665.43. In the absence of special authority in the will, an executor may invest only in United States or state bonds, in loans on real estate, and in the obligations of a city of New York state issued pursuant to law. Laws of 1897, c. 417, § 9; King v. Talbot, 40 N. Y. 76.

The investment by the executor in the real estate owned by his wife was in violation of the express terms of the will. The accounting administratrix will therefore be surcharged with the sum of $12,665.43 (Matter of Fithian, 44 Hun, 457), and with interest on that sum at the rate paid by savings banks from the 19th of November, 1909.

Settle decree accordingly.  