In re the Judicial Settlement of the Account of Proceedings of Burke

We think that the disposition by the learned surrogate in connection with the matters involved in this accounting proceeding was correct except with respect to the item of $5,500 for which there appears to have been a double surcharge. This sum represents the face value of Home Owners’ Loan Corporation bonds, received in payment of a mortgage and not accounted for by the deceased executor of the estate of Dr. Huber.

At the time of his death, Dr. Huber owned a mortgage in the principal sum of $5,350 on premises at 2005 Crotona avenue, Bronx. This mortgage is set up in the account as a charge against the deceased executor. The mortgage, plus accumulated interest, was paid off by Home Owners’ Loan Corporation bonds in the sum of $5,625 on October 8, 1934. Two of these bonds, one for $5,000 and another for $500, were not in the possession of the executor at the time of the latter’s death. Appellant sought to account for the bonds by charging the deceased executor with having on hand $5,621.13 in cash. This item was apparently intended to include the face amount of the missing bonds. However, such item was insufficient for that purpose. There was actually on hand in cash $552.69. The balance of $5,068.44 was inadequate to cover the amount of the two bonds. Appellant should be surcharged with the sum of $5,500, the face amount of the missing bonds, plus interest from October 8, 1935. The Home Owners’ Loan Corporation bonds take the place of the mortgage. The deceased executor’s estate may not be charged with both.

The decree should accordingly be modified by making only one surcharge for the item of $5,500, with accrued interest to the date of the accounting, and, as so modified, the decree should be in all respects affirmed, with costs to the appellant payable out of the estate. The order appealed from should be affirmed.

Present — Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ.

Decree unanimously modified by making only one surcharge for the item of $5,500, with accrued interest to the date of the accounting, and as so modified affirmed, with costs to the appellant payable out of the estate. Order appealed from unanimously affirmed. Settle order on notice.