In re the Judicial Settlement of the Account of Baruth

Majority

p. 596

Matter of the Judicial Settlement of the Account of Herman Baruth and Isaac Lublin, as Executors of the Last Will and Testament of Theresa Ketcham, Deceased.

(Surrogate’s Court, Kings County,

March, 1909.)

Headnote

Executors and administrators: Rights and liabilities between representative and estate — Items charged or credited — Payments on compromise of claim: Actions and proceedings in general — Authority, right and duty — 'Compromising actions.

Executors should be credited with a sum paid by them in compromise of an action against them on a claim said to have accrued against their decedent, although the claim should afterward be shown to have had no foundation, if they made the settlement in good faith and from a reasonable fear that the litigation for the enforcement of the claim might go against them, or that their success might prove more costly to the estate than a partial surrender.

Proceedings for the judicial settlement of the accounts of executors.

Hirsh & Rasquin (Hugo Hirsh, of counsel), for executors.

Hugo Wintner, for contestant, Philip Ketchum.

Ralph K. Jacobs, for Annie Jacobs.

Objection is made that the executors’ account should not be credited with the sum paid in compromise of an action against them on a claim said to have accrued against their decedent.

A determination that the executors were not liable in that action would not sustain the objection. Even if the cause of action which the executors have settled were now shown to have had no foundation, they should be allowed credit for the payment, if it was made in good faith and from a reasonable fear that the litigation might go against them or that their

p. 597

success therein might prove more costly than a partial surrender.

Without an attempt to answer the close questions which surround this claim, it should be held that the executors did wisely and faithfully in purchasing peace for the estate.

True, the alleged creditor, as a part of the compromise, gave to the executors his bond to indemnify them against liability if any should occur by reason of objections such as are now filed. But the quality of the objection remains the same as if no bond had been given. It still presents only the question whether the claim was fraudulently or negligently compounded.

The objection is overruled.

Obj setion overruled.