Jacot v. Emmett , 11 Paige Ch. 142 ( 1844 )

The Chancellor.

If the surrogate came to the right conclusion, from the testimony of E. II. Jacot the attorney, that the respondent had mixed the money belonging to the estate of his intestate with his own, and had used it, so that he had it not on hand when he was called on for payment, he might unquestionably have been charged with interest, according to the settled rule of this court in such cases. But a mere neglect by an administrator to invest moneys which he may be called upon to pay over to the distributees at any moment, would be no ground for charging him with interest, if the money was kept in bank or otherwise, ready to be paid over when called *for. Indeed, the administrator would not be authorized to loan the fund, to which adult distributees were immediately entitled, at their risk, and without authority from them.

Even if the respondent had rendered himself liable for interest, by using a portion of the trust fund for a time, the surrogate was still right in considering this settled account as conclusive between the parties, after it had been acquiesced in by the appellants for. nearly a year, without objection. There are no facts now disclosed which were not as well known to the attorney, at the time he made the settlement, with the respondent, and received the balance of the account, as they were when the respondent was subsequently cited to account before the surrogate. There was no item left out of the account by mistake, or from a misapprehension of facts; for the attorney was told, at .the time, that the respondent did not intend to pay any interest. The receipt of the balance of the account as stated, without any reservation of the right to claim interest afterwards, was therefore a waiver of the claim. El ven if interest had actually been received upon the trust moneys by the respondent, it would be doubtful at least whether the appellant could be permitted to surcharge and falsify an account thus stated and settled with a full knowledge of all the facts upon which the right to interest was based. Here, however, it is not pretended that the respondent had put out the trust fund and received interest thereon. But the claim for interest is founded upon the supposed breach of trust by a mere temporary use of the money, so that the respondent was not in funds to pay the same when it might be called for. And the cases referred to in the opinion of the surrogate, and by the counsel for the respondent, show that the receipt of the principal debt, when interest is only recoverable as damages, is a bar to the claim for interest.

The power of attorney was sufficient to authorize this settlement. Besides, the"-presumption is that the attorney communicated the facts which were known to him to- his constituent; and the acquiescence of the latter in the account as stated and settled, by his attorney, without objection, for nearly a year, ought of itself to be Considered a waiver of the claim to interest.

The sentence and decree of the surrogate, which is appealed from, must therefore be affirmed with costs.