#### Matter of the Judicial Settlement of the Estate of Henry Thorp, Deceased.

(Surrogate’s Court, Otsego County,

May, 1900.)

1. Administrator — Charged with interest on funds of estate deposited in his private bank.

Where an administrator, conducting a private bank, deposits therein funds of the estate of his intestate and places them to the credit of said estate, he is in the samp situation as an individual who mingles estate moneys with his own and is therefore chargeable with interest.

3. Same — Protected in holding hank stock for several years.

An administrator protected in holding dividend-paying bank stock of his intestate for three or four years and until it had depreciated considerably.

Proceedings upon the final judicial settlement of the accounts of administrators.

William Thorp (James H. Keyes, of counsel), for Mary H. Thorp, administratrix, Augusta Childs and others.

A. R. Gibbs, for E. 0. Brewer* administrator.

*582Arnold, S.

Henry Thorp died January 18, 1891. Letters of administration upon his estate were issued to Mary H. Thorp and Edward 0. Brewer on October 26, 1891.

The present proceedings are taken by the administrators for the final judicial settlement of their accounts. Mr. Brewer has practically had absolute control of the administration of the estate.

The contestants ask to have him charged personally,—

*First.*With interest on all moneys received by him;

*Second.*With the amount of decrease in certain bank stock held by the estate;

*Third.*With the amount of taxes alleged to have been erroneously paid by him.

It appears from the evidence that this administrator is a private banker at Gilbertsville, 3ST. Y. He receives money on deposit and discounts notes. Moneys belonging to the estate, received by him, were deposited in his private bank to the credit of the estate; so that to all intents and purposes he stands in exactly the same position as any private individual who had received the moneys of an estate and mingled them with his own.

In this class of cases the rule is well settled, that the representative will be charged with interest at the legal rate; and I must hold and direct in this case that the administrator, E. 0. Brewer, be charged with interest upon all moneys received by him from the time of such receipt.

Under the second objection it is maintained that the bank stock, which formed part of the assets of this estate, should have been sold long before it was sold; that owing to the delay in selling, this estate has suffered a loss. It appears from the testimony that the market value of this bank stock was considerably less at the time of its sale than the market value three or four years before. It appears from the testimony that at the time the stock came into the hands of the administrator it was paying dividends at the rate of six per cent.; that afterwards the dividends were reduced to four per cent., and afterwards were passed. The position of the administrator is, that this was stock of an old and established hank; that the stock was considered generally by the public as offering a good investment; that the estate of which he was administrator could not be settled until another estate. *583in which the contestants were jointly interested, had been judicially settled; that believing the stock of the bank to be a good investment he held it for the best interests of the estate-.

It is a general rule, that it is the duty of executors and administrators to proceed with diligence to convert the assets of an estate into -money, to pay the debts and settle the trust.

An executor or administrator should, within a reasonable time, dispose of the securities forming the assets of an estate, unless very good reasons exist for a contrary procedure. But the facts and circumstances in each case must control the action of the court.

From the testimony in this case, I have no- doubt that Mr. Brewer considered that he was acting for the best interests of: the estate in holding this bank stock, which was paying six per cent, dividends, until the time came when he could have a final settlement of his accounts.

He held some trust scrip of the same bank. He realized an increase on this scrip by holding it. I have considered the evidence carefully and I decline to charge him with decrease upon the value of the bank stock.

The third objection is overruled. The accounts of the administrators are allowed and passed as stated, except that interest is charged against Mr. Brewer for all moneys received by him from the time of the receipt up to the time that a decree is signed.

Findings may be prepared and submitted in accordance with the foregoing views, and a decree entered accordingly.

Decreed accordingly.