In re the Judicial Settlement of the Accounts of Clark , 34 N.Y. St. Rep. 523 ( 1891 )

Hardest, P. J.

Ho case containing the evidence given before the surrogate is presented to us upon this appeal, and we may not review the findings of fact made by the surrogate; nor need we consider the exceptions to findings of fact mentioned in the notice of appeal served by the appellant. See § 2545 of the Code of Civ. Pro.

It' seems by the findings that the appellant was indebted to Hiram Schrom, the deceased, at the time of his death, and that she did not pay such indebtedness to her co-executrix during her life-time, and apparently that indebtedness continued against the appellant down to the time of the statement of the accounts by the surrogate, and we are of the opinion that the surrogate properly held that the appellant was chargeable with interest on such indebtedness, and that she was chargeable with the principal thereof. Adair v. Brimmer, 74 N. Y., 539 ; Baucus v. Stover, 89 id., 1.

(2.) It appears by the seventeenth finding of fact made by the surrogate that the testator held, at the time of his death, a mortgage in the sum of $800, and that on April 80, 1879, his widow, then the co-executrix with the appellant, collected that mortgage, and re-invested the proceeds thereof at once in a mortgage given by one Graves. That mortgage passed, after the death of the widow, the co-executrix, into the hands of the appellant, and she collected the same, and used the moneys collected thereon for her own benefit; she was therefore properly chargeable with the sum realized; and we think she was properly chargeable with interest thereon.

If the co-executrix under the powers and privileges given to her by the will of her husband had used up the proceeds of the Dimick mortgage for her support during her lifetime, doubtless the respondents here would have'had no remedy ; but she did not use up the proceeds; she continued the proceeds and the same was an asset passing from her hands to the hands of the appellant, and the appellant was therefore properly required to account for the same. Greyston v. Clark, 41 Hun, 125 ; 4 N. Y. State Rep., 4.

As near as we can understand from the appeal book the summary made by the surrogate conforms to the findings of fact made by him and his conclusions seem to be proper. We think, however, his decree and the summary accompanying the same ■should be amended so as to make the correction of $18.05 to which we have already referred, and for such purpose the proceedings should be remitted to the surrogate’s court to the end that the surrogate may revise the decree in that respect upon notice of five days given by either party to the other; in the other respects the decree should be affirmed.

Modification should be directed in the decree in the sum of $13.05 to be made by the surrogate of Chenango county; and in the other respects the decree is affirmed, without costs.

Martin and Merwin,'JJ., concur.