In re the Accounting of Fuschillo , 40 N.Y.S.2d 700 ( 1943 )

Henderson, S.

The objections to the account are disposed of as follows:

1, 2 and 6. These objections are based on an alleged failure of the executor to report, fully, contributions to the family made by persons in accordance with the Italian custom at the time of the decedent’s death. It is claimed that $490 was collected. The executor reports $142. The funeral expenses amounted to $450. I am satisfied that the objectant was truthful in her testimony which was to the effect that the executor’s daughter, the objectant and one of the decedent’s sons collected money'from friends of the decedent and his family, that this money was all turned over to the executor’s daughter who entered the names and amounts in a blank book. I find that the money was counted in the executor’s presence by the daughter who stated that she had $475 and gave that sum to him. To whom this money belongs depends on the intent of the donors. Unquestionably it is primarily a fund to defray the expenses of the funeral. It is seldom that the fund is in excess of the funeral expenses. It is my opinion that the donors intend such excess for the benefit and use of the immediate family. It is no part of the estate. As the executor collected a sum in excess of the funeral expenses, he will be required to apply "this money for that purpose. Claim for credit for funeral expenses will be denied and the executor will be surcharged $321 to pay the claim of decedent’s son for advances made to defray such expenses.

3 and 4. Withdrawn.

5. Sustained. I find that the day preceding the demise of the decedent, the executor received a tomato can containing money belonging to the decedent, the amount of which was stated by the deceased to be $100. The executor will be surcharged in that sum.

Settle decree.