#### Matter of the Judicial Settlement of the Account of John C. Fry as Sole Surviving Executor under the Last Will and Testament of John C. Fry, Deceased. Matter of the Judicial Settlement of the Account of the Nassau Trust Company, of the City of Brooklyn, as Executor of the Last Will and Testament of William H. Fry, a Deceased Executor of John C. Fry, late of the County of Kings and State of New York, Deceased.

(Surrogate’s Court, Kings County,

January, 1913.)

Accounting — executors and administrators—by surviving executor — interest on bonds.

Where, upon the judicial settlement of the account of executors, it appears that they have had the advantage of a note, taken on account of certain club bonds, which carries interest payable at intervals of six months, they will be charged with interest at the legal, rate with annual rests, where, under a finding charging them with the value of the bonds, the note must be regarded as their own individually and where under the proofs- neither the surviving executor nor the representative of his deceased co-executor can ask that the interest payable to their testator’s beneficiaries be less than that which thus became payable to them.

Where the surviving executor, who hau possession of the bonds, accounts for the interest thereon up to a certain d-ate, and the club paid the interest on the bond issue for six years more, and *181thereafter, in the lifetime of the deceased executor," the bonds were sold to a reorganization committee, a charge of six years’ interest is necessary, whether the executor received it, or with ordinary diligence should have received it.

The items with which the executors were found chargeable must be incorporated in a restatement of the account of the surviving executor; but in the accounting of the executor of the deceased executor the finding and the decree in these respects must be confined to such statement and direction as will present the liability of the deceased executor at his death for the sums which would have been chargeable to him had he personally accounted.

Proceedings upon the judicial settlement of the accounts of a surviving executor and also of an executor of a deceased executor.

Paul Bonynge, for John 0. Fry, accountant.

Charles O. Grim, for Nassau Trust Company, accountant.

Coombs & Wilson (C. W. Wilson, Jr., of counsel), for Philip J. Fry, individually and as trustee of the estate of George W. Fry, deceased.

Hart & Tompkins (Millard F. Tompkins, of counsel), for Elizabeth F. Hurlimann, "Dorothy F. Duggan and Edward H. Fry.

William Williams (John G. Jackson, of counsel), for Charles Billett, a creditor.

Ketoham, S.

The executors must be charged with $24,-668.75, on account of the fifty-five bonds of the Turkish Bath Company, under such findings as to their dealings with the securities mentioned as will accord with the evidence.

Interest on the sum last named should be charged at the rate of six per cent, with annual rests. The case, in its general features, justifies the extreme interest penalty; but, penalty or none, the accountants have the advantage of the note taken for $24,268.75, which carries interest payable at inter*182vals of six months. This,, though taken hy the executors as such, must he regarded as their own individually, under a finding charging them with the value of the bonds, and upon the proofs neither the surviving executor nor the representative of the deceased executor can ask that the interest to be paid to the beneficiaries be less than that which thus became payable to them.

It is not conceivable that the disposition by the executors of a portion of the estate, if unlawful, can be approved upon this accounting at the election of a portion of the persons interested. Any beneficiary may personally commute his rights in any manner agreeable to the accountants and himself, but he cannot require any adjustment of the general account which would vary from the legal effect of the -evidence or the just demands of creditors or other beneficiaries.

Both executors became chargeable with six years’ interest upon the club bonds. The surviving executor had possession of these bonds. He accounts for interest thereon up to July, 1902, and the club paid interest on the bond issue generally up to July 8, 1908. Thereafter, in the lifetime of the executor now deceased, the bonds were sold to a reorganization committee of the club. The charge of six years’ interest is, therefore, necessary whether the executors received it or with ordinary diligence should have received it.

The items with which the executors are found chargeable must be incorporated in a re-statement of the account of the surviving executor, but in the accounting of the executor of the deceased executor the finding and decree in these respects must he confined to such statement and direction as will present the liability of the deceased executor at his death for the sums which would have been chargeable to him if he had accounted in his own person. The account of the executor of the deceased executor go far as it affects the accountant personally must be approved.

Decree should be submitted in each proceeding in accordance with these views.

Decreed accordingly.