In re the Estate of Lodge , 391 N.Y.S.2d 808 ( 1977 )

F. Warren Travers, S.

The decedent, John H. Lodge, was a funeral director. On June 27, 1967, claimant, Mabel H. Pettit, paid decedent the sum of $1,100 as prepayment for her funeral expenses.

Decedent gave claimant a receipt which reads as follows: "For funeral expenses in advance of death, these expenses include professional services, casket, outside care, dress, clothing, grave space in select location Elmwood Hill Cemetery, Troy, New York, religious offering and grave marker (granite) the cost of said marker not to exceed One Hundred Dollars ($100.00) and other incidentals to make the funeral complete.”

At about that same time, claimant executed her last will and testament in which she named the decedent as her executor.

John H. Lodge died on September 17, 1975 and his will has been admitted to probate in this court.

Claimant now seeks a decree directing the executrix to return the sum of $1,100 plus accumulated interest from June 27,1967.

The executrix, through her attorney, advised the court that the decedent had placed the sum of $1,100 in a special interest bearing savings account. The executrix offered to return the $1,100 but rejected that portion of the claim which demanded interest on the sum of $1,100.

Although there does not appear to be any decisional law covering this subject, the statutory law is quite clear.

Section 453 of the General Business Law requires that all money paid on what is called a "pre-need burial contract” shall be held in trust by the person receiving the money in a special account, "and shall be so held on deposit, together with any interest thereon” until the services are rendered.

"The amount of any and all moneys * * * together with interest, if any, accrued thereon while on deposit as so required shall be repaid on demand at any time prior to * * * the rendering of the personal services.”

The same statute (General Business Law, § 453) further states that failure "to deposit or keep on deposit or to repay any and all such moneys as provided in this section” is a misdemeanor.

Accordingly, the executrix is directed to pay over to the claimant the sum of $1,100 together with all interest accrued thereon to the date of delivery.