
    In the Matter of the Petition of Matilda Myers for an Allowance, etc. In the Matter of the Petition of Louisa Myers for an Allowance, etc.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 11, 1891.)
    
    Executors and administrators—Interest. _
    Where the executors permit the assets of a firm of which the deceased was a member to remain in a new firm formed immediately upon his death, but a portion of such assets carries no securities for customers of the new firm; and is no otherwise employed in its business than by being carried into its books, the executors cannot be compelled to pay full interest upon such portion.
    Settlement of order. For decision on appeal, see 33 H. Y. State Rep., 977.
    
      James Thomson, for petitioners; Edgar M. Johnson, for app’lts.
   Daniels, J.

Upon the proposal to settle the order directed for the disposition of the appeals in these proceedings, it was objected that the" deductions mentioned in the opinion should not be made, and that this should be corrected by the order to be entered to carry the decision into effect And the case has been re-examined on the suggestions of the counsel for the parties, to determine the soundness of this objection. And from the evidence of the executor, John A. Rutherford, there appears to be fair ground for advancing the item of $18,720.80, to the sum of $23,401, and advancing what has been called the J. R. account, from $96,660.36, to the sum of $120,825.43, which will bring the personal estate to the sum of $180,920.90, exclusive of the undivided half of the seat in the Stock Exchange, and the additional securities, in the suspense account, amounting to $10,503, making a large advance over the inventory of the appraisers.

But this balance of $180.920.90 still seems to exceed the amount upon which interest should be charged against the executors. For it appears further from the evidence of the same person, who is the acting executor, that he is still keeping the securities and properties representing this one-half of the J. R. account, being the sum of $120,825.43, on hand, and that the new firm is not carrying any stock or bonds for any of its customers on that account. He further added that at the time of the decease of Mr. Myers, the testator, the firm was carrying stocks and bonds, but this J.R. account did not. If this account carried no securities for customers in the business at the time of the decease of the testator, and has carried none since, there seems to be reason for concluding that the new firm has derived no profit from it in its business which would justify the imposition of six per cent interest, on the amount of it, on the executors.

The figures, are given in the usual manner of complicating accounts entering into legal proceedings and it may be that they will justify a different result. But that is not at present apparent.

Neither the referee by his report, nor the decrees confirming it, contain any solution of this condition of the J. B. account. For they all proceed upon the theory that the value of the undivided half of the seat in the Stock Exchange, the additional securities in the suspense account, amounting to $10,503, and also those held in the J. B. account, should be deducted.

The referee has plainly enumerated these three items as items to be deducted. And then it has been further added:

Begarding the interest of the testator in Stock Exchange seat and the securities of the J. B. account, and suspense account above mentioned, and which securities are chiefly known as wild cat, I am of opinion that in view of the contest pending, regarding the probate of the will, and the nature of the securities, and under "the circumtances disclosed by the evidence, no income has been derived from those securities, and that the executors have not been guilty of such negligence in failing to dispose of them as would render the estate or the executors liable for income on "these amounts, and that the executors were entitled to use their judgment in disposing of them.

And these conclusions are in evident variance with that finally following, that the executors should pay interest at the rate of six per cent on the total amount of $180,000; for without the J. B. account that cannot possibly be their liability. If the J. B. account has carried no securities for the customers of the new firm, and been no otherwise employed in its business than by being carried into its books, then it is difficult to see how the executors are liable to pay the rate of six per cent interest upon it The counsel may be able to show some mode through which that rate of interest may be imposed. And to present this opportunity, a re-submission of these appeals should be permitted, by briefs to be supplied in ten days after notice of this decision.

Van Brunt, P. J., and Brady, X, concur.  