Drake v. . Price

Foot, J.

The material question in this cause is, whether the appellant and his deceased co-executor held the funds as executors, or as trustees, or, in other words, whether, as executors, they had paid it over to themselves, as trustees, and held it in the latter character. The same question arose on a similar clause in a will, in the case of Valentine v. Valentine (2 Barb. Ch. 430), and Chancellor Walworth decided, that the executors held the funds in their character of executors, and not as trustees. His decision appears to me to be sound, and in accordance with, the provisions of the will. Holding the fund, and receiving and paying over the interest, as executors, the appellant and his co-executors are *clearly entitled to only one per cent, on the interest received and paid.