Opinion
March 22, 1971
In a proceeding to settle the account of one of the executors and trustees, the objectants to the account appeal from a decree of the Surrogate's Court, Kings County, dated April 30, 1968, which denied the objectants' motion to disaffirm the report of a Referee, dismissed the objections, modified the report so as to provide for payment of the Referee's fee and disbursements, and confirmed the report as so modified. Decree modified, on the law and the facts and in the exercise of discretion, by (1) adding thereto a provision surcharging respondent with interest on the sum which remained on deposit with the Merchants Bank of New York from October 25, 1962 until the filing of his account, (2) striking so much of the second decretal paragraph as adjudged that the objectants refund to respondent the amount surcharged for the Referee's fee and disbursements and (3) adding to the provision in the fifth decretal paragraph which adjudged that the objections "are dismissed" the following: "except that the objection with respect to interest on the bank account is sustained". As so modified, decree affirmed, without costs, and proceeding remitted to the Surrogate's Court for entry of an amended decree not inconsistent herewith. On the record before us, respondent failed to supply any reasonable explanation for retaining a substantial amount of estate funds in a noninterest-bearing bank account for over three years and should be surcharged for interest on that sum ( Matter of Ducker, 3 A.D.2d 852; Matter of Frey, 55 Misc.2d 567, 569). Moreover, we think that, in view of the delay and other irregularities in the accounting, respondent alone should have been charged with the expense of the reference. Martuscello, Latham, Christ, Brennan and Benjamin, JJ., concur.