George S. Wright, Appellant, v. Abby J. Fleming et al., Respondents

George S. Wright, Appellant, v. Abby J. Fleming et al., Respondents. (Argued November 28, 1877; decided January 15, 1878.) This was an appeal from a judgment of General Term, affirming in part a decree of a surrogate upon the final accounting of appellant as administrator of the estate of John S. Wright, deceased. The point upon which a majority of the court concurred for reversal, was as follows: The administrator was charged by the surrogate with interest upon certain United States bonds, part of the estate, and with the value of the bonds at the time of the accounting. The claim of the administrator was that he sold the bonds and accounted for the receipts, and that he should only have been charged with the proceeds of the sale and interest thereon. In his account, which was the foundation of the proceedings, the administrator charged himself, in a column headed “ appraised value,” with the value of the bonds as appraised, which was their value at the time d)f appraisal. In the next column headed “ amount realized on sale,” he charged himself with amounts received; and in a third column, headed “ increase,” was stated the gain upon the inventory made by the sale. The gross value of the bonds, as “ appraised,” was stated at $120,990; the amount “realized on sale,” $126,726.86; the “increase,” $5,736.86. There was no specific objection to these items or allegation that the bonds had not been sold at the prices stated, and no evidence given tending to impeach the statement. The administrator was charged, however, with the increased value at the time of the accounting, and with the interest the same as if he had retained them. Held, error. Clarkson N. Potter and A. J. Vanderpoel, for appellant. Samuel Hand, George Morris and Alexander Thain, for respondents. [MAJORITY — Allen, J.,] Allen, J., reads for reversal of judgment of the General Term of the Supreme Court and of the decree of the surrogate, and proceedings remitted for a rehearing by the surrogate, with costs to appellant to be paid out of the estate. Sapallo, J., concurs. Miller, J:, concurs in result. Folger and Earl, JJ., concur in result on last ground, and without expressing opinion as to the claim for earnings, etc., of the “ Daniel Webster.” Church, Ch. J., and Andrews, J., absent. Judgment reversed.