Upon the final accounting the claimant’s claim was allowed by the learned surrogate at $5,719.32. An examination of the record discloses that there is not legal evidence justifying such allowance. The record is in such a confused and unsatisfactory condition that it is impossible for this court to correct the decision and direct a settlement of the account at any definite amount. It is, therefore, necessary to reverse the decree and remit the matter for a new hearing.
As the record now stands it was improper to allow claimant for certain items of her claim prior to the settlement and account stated on February 12, 1910. (1 C. J. 705; Stenton v. Jerome, 54 N. Y. 480; Lockwood v. Thorne, 11 id. 170.)
It was also error to allow compound interest. (Myers v. Bolton, 157 N. Y. 393.)
Under the present condition of the record it was error to allow simple interest on yearly balances. There is no legal evidence of an agreement to pay interest. (Price v. Holman, 135 N. Y. 124; Beard v. Beard, 140 id. 260; Miller v. Clark, 5 Lans. 388.)
The stipulation of the attorney for the executor admitting that the testator received dividends from the Bank of Hamburg and payments from the Hamburg Savings and Loan Association as “ charged in the account ” is not an admission which establishes any part of the claim not “ charged in the account.” The claimant, in accepting the admission, accepted it with all of its limitations and qualifications. (Gildersleeve v. Landon, 73 N. Y. 609; Grattan v. Metropolitan Life Insurance Co., 92 id. 274.)
This is upon the assumption that the .words “ charged in the account ” refer to the book account of decedent. The words are claimed by respondent to refer to the account or claim filed by the claimant. It is impossible to determine that question in the present state of the record.
The decree should be reversed and the matter remitted to the Surrogate’s Court of Erie county, with costs to the appellants to abide the event.
All concur. Present — Hubbs, P. J., Davis, Sears, Crouch and Taylor, JJ.
Decree reversed on the law and facts and matter remitted to the Surrogate’s Court for a new hearing, with costs to the appellants to abide the event.