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Christatos' Estate, In re

Surrogate's Court, New York County

April 26, 1955

Christatos' Estate, In re

Page 766

Frederick H. Koschwitz, New York City, for the Robert K. Christatos, Brynolf W. Fahlander and Herbert E. Warnk, executors, petitioners.

Louis W. Arnold, Jr., New York City, for Robert K. Christatos and Brynolf W. Fahlander, individually, respondents.

Marion P. Thompson, New York City, for Genevieve T. Christatos, General Guardian of Maurice Christatos 3rd and Aline Christatos, respondents.

William A. Hermann, New York City, for Marie B. Schmittner, general guardian of Elizabeth D. Christatos and Roberta M. Christatos, respondents.

FRANKENTHALER, Surrogate.

Decedent's will bequeathed the capital stock of a corporation wholly owned by him, to one of the accounting executors. The executors' account recognizes that this corporation was indebted to decedent

Page 767

but the account fails to charge interest upon the debt and objection to this omission is made by the general guardian of residuary legatees. The absence of an express agreement to pay interest, the circumstances of the advances and the relationship between decedent and his corporation establish that fact that interest on the obligation was not payable during decedent's lifetime but such fact does not bar recovery of interest, as damages, from the date of his death, when the debt became due. See Restatement of Contracts, § 337; Pryor v. City of Buffalo, 197 N.Y. 123, 142-143, 90 N.E. 423, 429; Matter of Ittleman, 286 N.Y. 150, 153, 36 N.E.2d 89, 90; Matter of City of New York, 288 N.Y. 51, 56-57, 41 N.E.2d 454, 456-457; Melzer v. Zimmerman, 118 Misc. 407, 409-410, 194 N.Y.S. 222, 224-225, affirmed 205 A.D. 886, 198 N.Y.S. 932. The objection to the failure to account for interest at the legal rate from the date of decedent's death is sustained, Matter of Myers, 131 N.Y. 409, 30 N.E. 135; Matter of Cole's Estate, 85 Misc. 630, 148 N.Y.S. 1099; Civil Practice Act, § 480, and the executors are surcharged to the extent that the interests represented by the objectant are affected by such non-payment. Matter of Stumpp's Estate, 153 Misc. 92, 100-101, 274 N.Y.S. 466, 474-476; In re Rosenbaum's Estate, Sur., 76 N.Y.S.2d 715.

The court finds that the salaries paid to the executors in their capacities as employees of the estate business were reasonable payments for the services rendered. The objection of the general guardian to such payments is dismissed.

The third objection of the general guardian is sustained. If benefit resulted to the general estate from the liquidation of the accounts receivable, the services in that connection were within the executorial duties of the accountants.

The fees paid for accounting and legal services are held to be reasonable in amount and the objection to such payments is dismissed.

The proof at the hearing did not support the contention made in the fifth objection of the general guardian and that objection is dismissed. Her sixth objection involves the construction question that is later considered and her seventh objection was withdrawn at the hearing.

The gross value of the estate exceeds one hundred thousand dollars and, consequently, the executors are entitled to three full commissions, Surrogate's Court Act, § 285, subd. 8. The value of the assets bequeathed in article Seventh of the will is properly includible in computing such gross value since, if such bequest be construed as a specific legacy, testator's directions as to said assets imposed special duties upon his executors. Matter of Berwind's Estate, 181 Misc. 559, 42 N.Y.S.2d 58; Matter of Marshall's Estate, 199 Misc. 431, 100 N.Y.S.2d 996. ...


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