Haskin v. Teller

The Surrogate. I can see no reason to disturb the report of the auditor as to the “First” and “Second” findings. The testimony was somewhat conflicting in some respects and in others vague. I think he has done substantial justice in regard to those items. I feel constrained, however, to differ from him as to the “ Third.” It was held by this court in Hitchcock v. Marshall (2 Redf., 174), that a Surrogate’s Court had no power to decree payment to an assignee of a distributive share, but must direct it to be made to the distributee himself, and that the assignee must seek relief in some forum having adequate power to grant it. If that proposition be correct, then it seems to me ■there can be no difficulty in disposing of- this question. In that case, the administrator should be directed to pay the Van Tuyls their distributive shares, less the amount of these notes. That would seem to be equitable and just. The administrator has charged himself in his account with this sum of $2285.74, and the effect of the auditor’s decision is to deprive him of the credits he claims in having paid to each of these next-of-kin so much on account of their shares, and to leave him to recover the amounts of the notes, if he can, from those to whom the amounts really belong. I can perceive no necessity for such circuity of action. Under our statutes these ladies, on complying with certain conditions, could, after the lapse of a year from the granting of administration, have sued the administrator to recover their distributive shares. Is [322] it not clear that he, in such case, could set off and be allowed these notes, which he held in his representative character ? It would scarcely answer for them to say, “ You had no right to take these notes.” They were taken by him as collector and subsequently passed into his hands as administrator, with enlarged powers in regard to them. The case of Smith v. Kearney (2 Barb. Ch., 533), to which I am referred by counsel for the administrator, is not strictly analogous, as the claim was against the deceased; but the case of Jeffs v. Woods (2 Peere Williams, 128), cited by the chancellor, is more nearly in point. There the executor was permitted to retain out of the legacy a debt due to him personally from the legatee. If, therefore, a personal claim could be retained as against a legatee or distributee, the reason for such retention in this case is stronger from the fact that the debts were due to the administrator as such. So much of the auditor’s report as refuses to permit the amount of these notes to be credited to the administrator must, therefore, be set aside. But, inasmuch as the Van Tuyl ladies were not entitled to their distributive shares until June 26th, 1868, being one year after the date of letters of administration, I think the administrator should be charged with interest on their respective notes down to that date only, and that they are liable to him for such interest^ and, therefore, the amounts of the notes and interest should then be deducted from their shares as of those dates. I concur with the auditor as to the liability of the administrator for interest as determined by the “Fourth” paragraph of his report. • [323] The auditor has allowed interest on a balance of principal sum of $10,184.76 from April 13th, 1869, to November 22d, 1877 (date of his report); at the rate of 7 per cent. In this I think he was in error. The fund was generally kept on deposit in a trust company, yielding an interest of 4 per cent. There were a few brief periods when the administrator kept some part of the money in a savings bank, of which he was an officer, without interest, until he could go and deposit it with the trust company. It must be remarked that the accounting proceedings were pending during the whole period, and it was impossible for him to foresee when they would be terminated and how soon he should be called on to pay over. Under these circumstances, he could not be required to do more than to have the money on call, at such rate of interest as he could obtain. It strikes me that the method adopted by him was all that could be required. It would be unjust to charge him seven, when, at the most, he only received four per cent. If, however, it is sought to justify the charge of interest at the legal rate on the ground that he should be so charged because he did not proceed at once to distribute the balance, in pursuance of the agreement of January, 1869, 1 consider it a sufficient answer to say that this court has no ¡Dower to award damages for a breach of contract. Interest should, therefore, be charged at the rate of four per cent. only. The administrator claims the right to deduct his commissions as of the date of filing his account. The statute (2 R. S., 93, § 58), directs that “on the settlement of the accounts of an executor or administrator, [324] the Surrogate shall allow him for his services” certain commissions. No such “settlement” as is contemplated by the statute can be considered made until the decree fixing the rights of the respective parties shall have been entered. The Surrogate must first ascertain, by adjusting the account, the amount on which the allowance is to be based. It is conceded that the administrator should he credited with two payments made by him since filing his account, to wit: one of $25.60, with interest from December 17,1870, and another of $573.52, with interest from December 28, 1870, but I think the rate of such interest should be limited to four per cent. The auditor’s fees, as fixed by law, and the other expenses of the proceeding must be paid out of the fund, and the administrator must have an allowance of $10 per day for services of counsel in preparing for and attending upon the accounting, the number of days to be shown by affidavit. A decree must be entered according to the views above expressed.