In re Lamb's Estate , 21 N.Y.S. 343 ( 1892 )

BARNARD, P. J.

The executors apply to be discharged. The surrogate of Kings county granted their application. Upon the accounting it appeared that there was a bond and mortgage made to them for $20,-000. This amount was held for two trust funds,—one for Maria Leach for $10,000, and one for her children for the same amount. The executors claim an allowance for- $225, paid by them upon a transfer of this mortgage. The mortgage was perfectly good. The trust funds were not full, but each had been depleted. The successor appointed by the court would not take the $20,000 mprtgage and pay the overdrafts to the trustees. The item for the expense of negotiating the mortgage was properly rejected. The beneficiaries should not be called upon to pay for serving the two funds, especially as the successors in trust to the executors could not be compelled to take a mortgage greater than the estate, and pay the trustees. The cost of the special accounting was properly put in the petition. They asked to be discharged, and it was no. more than was just that they should not charge the estate with a special accounting. The executors had good reason to be discharged on their own request without fulfilling the trust, but it was equitable that their application should not cost the funds for an account which was only an incident to their discharge on their own request. . The order appealed from should be affirmed, with costs. All concur.