Opinion
March 24, 1952.
Appeal from Surrogate's Court, Rockland County.
Present — Nolan, P.J., Carswell, Johnston, Adel and Schmidt, JJ.
The two coexecutors and the children of decedent appeal from so much of the same decree which allows six of the seven claims presented by petitioner against the estate, and allows petitioner's attorney a fee of $500 in the construction proceeding. Decree modified on the law by striking from the fourth ordering paragraph "$10,583.95", "$8,083.97", and "November 8, 1950" and substituting therefor "$9,396.30", "$6,896.32", and "October 20, 1949", respectively. As so modified, the decree is unanimously affirmed, insofar as appealed from, with costs to all parties filing briefs, payable out of the estate. A condition that the devisee shall not rent part of the property may be lawfully imposed on the devise of a life estate. ( De Peyster v. Michael, 6 N.Y. 467, 491-492; Oliver v. Wells, 254 N.Y. 451.) There was sufficient evidence before the Surrogate to justify the finding that decedent received the moneys advanced by petitioner as loans ( Bogert v. Morse, 1 N.Y. 377), except as to claim "#5", which should have been disallowed. Interest should have been allowed on the claims from the date of death rather than from the date of presentation of the claims. ( Matter of Manchester, 279 App. Div. 254.)