In re Estate of McQueen

By the Court, Crockett, J.: The intestate, at the time of her death, left on deposit with the Hibeniia Savings and Loan Society a considerable sum of money, which was drawing interest, and on which interest would have continued to he paid so long as the money remained on deposit. But the administrator, soon after his appointment, withdrew the fund from the bank, and on rendering his final account for settlement charged himself with the principal sum, hut without interest. On the settlement of the account the Probate Court decided that the administrator was chargeable with interest on this sum from the time of its withdrawal from the hank, and ordered the account to he amended in this particular. The only-question on this appeal is whether or not this ruling was correct. The Court finds the facts to be:

“ That the administrator had, at all times, sufficient money in his hands to make all payments made by him without withdrawing said sum of four thousand nine hundred and thirty-four dollars and seventy-nine cents, or any part thereof, from said Hibernia Savings and Loan Society, and did not require to have said money, or any part thereof, in hand to pay off debts or expenses, and that by said sum being withdrawn the estate had been deprived of dividends which would have accrued thereon.

“ That the amount of the debts and expenses could not be [588]known to the administrator before the expiration of ten months.

“ That the said Hibernia Savings and Loan Society, for many years prior to the withdrawal of said sum, had been and ever since has been a corporation formed for the purpose of receiving deposits and loaning the same for interest on real estate security, paying semi-annual dividends to depositors at the rate of from nine to twelve per cent per annum, and of universally recognized solvency.

“That the place of deposit of said sum was a proper one and of acknowledged safety, and that a man cautious and prudent in his own business could have permitted it to remain in said society.”

The correctness of the findings of fact are not questioned; hut it is insisted that on these facts the administrator is not liable for interest. The Court does not find that the administrator used for his own profit the fund withdrawn from the hank, nor that he mingled it with 1ns own money; and in the absence of a finding to that effect, the presumption is that he did his duty, and neither used the money for his own advantage or mixed it with his own. The Probate Court evidently proceeded on the theory that by withdrawing the fund from the bank where it was drawing interest, when there was no apparent necessity for doing so, for the payment of debts, or the expenses of administration, the administrator had prevented the accumulation of interest, and should therefore pay the interest himself. The authorities are uniform to the effect that an executor, administrator, or other person acting in a fiduciary capacity, will not be allowed to traffic, for his own advantage, in the trust fund under his control. But, as if for the purpose of putting that question beyond controversy, section two hundred and seventeen of our Probate Act p2'0vides that “he shall not make profit by the increase * * * of any part of the estate.” If it had appeared