In re the Estate of Flannery , 19 A.D.2d 741 ( 1963 )

In a proceeding by an executor to judicially settle, his final account, in which the decedent’s sister (Mary Grace Morris) was one of the objectants, the executor appeals, as limited by his brief: (.1) from so much of a decree of the Surrogate’s Court, Kings Comity, entered December 29, 1960 upon the court’s decision after hearings before a Referee, confirming the Referee’s final report and settling the account in accordance with such report, as surcharged the. executor in certain amounts; and (2) from so much of an intermediate order of the same court, dated September 30, 1959, confirming the Referee’s interim report, as directed that within a specified period the executor shall deliver certain corporate stock certificates to the sister’s attorney. Intermediate order of September 30, 1959, insofar as appealed from, affirmed, without costs. The time of the executor to deliver the corporate stock certificates, as directed by said order, is extended until 30 days after entry of the order hereon. Final decree modified on the facts: (1) By amending its first decretal paragraph approving the Referee’s report dated December 21, 1959, so as to provide that the report, as modified, is ratified and approved, and that the report is modified by changing subparagraph 9 of paragraph twenty-ninth thereof relating to schedule A-3 of the executor’s account, as follows: (a) by providing that the sum of $6,685 fixed by the Referee as the amount due to the estate from the objectant Mary Grace Morris for her use and occupancy of the premises at 157-98th Street, Brooklyn, New York, is the total net amount due from her, without any further deductions therefrom and without any further credits to her; (b) by providing that the total net credit due to the petitioner-executor from the estate is $3,039.57; and (e) by striking out the two items: “less amount due petitioner $3,039.57” and “balance due estate $3,645.43.” (2) By amending the second decretal paragraph so as to provide that the amended account to be rendered and filed by the executor shall be in accordance with the Referee’s report as modified and as ratified and affirmed by the court. As so modified, the decree, insofar as appealed from, is affirmed, with costs to all parties filing briefs, payable out of the estate. The amended account shall be rendered and filed within 60 days after entry of the order hereon. Findings of fact which may be inconsistent herewith are reversed, and new findings are made as indicated herein. It appears that the Referee charged the objectant sister of the decedent (Mary Grace Morris), for her nse and occupancy of the premises mentioned in Ms final report, a total of $11,760, and that for certain expenditures made by her during the specified period for taxes, interest, repairs and the like, he allowed her a credit of $5,075. However, the Referee also appears to have allowed to the sister as a further credit the sum of $3,039.57 for similar expenditures made not by her, but by the executor. He is the one entitled to this credit of $3,039.57. Our modification of the decree is intended only to correct tMs obvious error. Ughetta, Acting P. J., Kleinfeld, Christ, Brennan and Hopkins, JJ., concur.