I see no reason to change my original determination in this matter denying commissions to all tho executors. (Matter of Hutkoff, N. Y. L. J. Jan. 20, 1925.) The testimony before the referee discloses sufficient acts of negligence on the part of the most active executor, Bessie C. H. Goodman, to justify this conclusion. Moreover, the other executors appear to have acquiesced in her management of the estate. The question of an allowance of commissions is in the discretion of the surrogate. He may deny compensation where there has been misconduct or negligence. (Matter of Rutledge, 162 N. Y. 31; Jessup-Redf. Surr. Ct. [1925 ed.] 1627; Matter of Hayes, 40 Misc. 500.) Any finding of the referee bearing upon the question of commissions is not conclusive as to their award. It appears that the executrix, Mrs. Goodman, deposited the funds of the estate in her individual name in violation of the provisions of section 231 of the Surrogate’s Court Act. This fact alone is sufficient to justify the denial .of compensation. The statute requires that the funds of the estate should be deposited in the names of the executors as such, and makes the violation thereof a misdemeanor. This salutary rule earmarks the estate moneys, prevents the mingling of the personal funds of the executors with the estate funds and tends to avoid a diversion of the property of the beneficiaries.
Upon the reference much time was spent and expense to the estate caused by attempts to unravel these accounts and to explain various items therein, which would have been avoided if the bank account was properly and lawfully maintained. The executrix also sought to obtain commissions for herself as real estate agent for rents collected as executrix. . These items were disallowed. She failed to account for interest earned on the estate funds deposited in her individual name. Moreover, the surcharges contained in the referee’s report, both voluntary and compulsory, were substantial in amount. It is unnecessary to refer to the other facts in the record affecting the management of the estate, which justify my conclusion.
Submit order accordingly.