swear that the foregoing account is just and true, and that I have bona fide paid, or secured to be paid, the several sums for which I claim credit and allowances.'
Notwithstanding the Executor's above-quoted agreement with Mr. Taylor, his oath attached to the account as Executor, the approval by the court of the account authorizing the fees in question and the distribution thereof, and the frequent demands made upon the Executor by the attorney for the latter's agreed fee as approved by the court, said fee is still unpaid, although many months have elapsed since the approval of the account. Instead, according to the allegations of the Petition for Rule to Show Cause, which were not denied by the Executor's answer, the Executor appropriated from the estate the entire amount of $ 5,000 to himself, despite the allowance to him by the court of $ 1,806.30 as his portion. Paragraph 2 of Mr. Taylor's Petition alleges under oath 'That your Petitioner has not been paid and has made demand upon the surety, Peerless Insurance Company, for payment of Petitioner's claim, after ascertaining that the Executor was unable to pay said claim and was able to arrange only token monthly payments thereon which have now ceased; that the total payments made by said Executor consist of ten United States Savings Bonds, which each have a face value of $ 50.00 at maturity in ten years; that none of said bonds have been used by your Petitioner and said bonds will be delivered to the surety named as a party herein or credited to the amount due by said surety to your Petitioner.'
The above-quoted allegations were not disputed or denied by the Executor in his answer. Furthermore, the Peerless Insurance Company, in its answer to the Rule to Show Cause, demanded judgment against the Executor for any amount which it may be required to pay Petitioner Taylor, alleging a breach of agreement by the Executor in his contract with the surety as follows (Paragraph 7 thereof):
'The executor's Application for Fiduciary Bond, dated June 24, 1961, requires the executor to deposit collateral in amount and nature satisfactory to the surety in the event of claim upon the surety's bond. This surety has made demand upon the executor, but he has failed to deposit any collateral whatsoever with the surety. D.C.Code (1961), Section 20-109 provides that the Court may order the executor to give counter security for the benefit of the surety if the surety considers itself in danger and applies to the Court for such an order. The surety respectfully requests an order directing the executor Flanders to deposit security in the amount of the petitioner Taylor's claim.'
At the request of the court, the Register of Wills caused to be made an examination of the account of Robert L. Flanders, Executor of the Estate of Portia M. Oberly, deceased, at the Riggs National Bank. This examination disclosed that at the time of the agreement between Mr. Flanders and Mr. Taylor for the division of the fees totalling $ 5,000 and the consequent withdrawal of his exceptions by Mr. Taylor, the Executor had no such amount in the bank to the credit of this estate, as he was supposed to have, but instead actually had the sum of $ 3.36, and had had no more than $ 8.36 since September 19, 1962. Photostatic copies of pertinent parts of the account have been obtained and made a part of the Register of Wills official files. (The said bank account was closed out on August 14, 1963, when the Executor made good an overdraft of $ 5.44.) At no time did the balance amount to more than $ 8.36 from September 19, 1962, to date of closing on August 14, 1963, despite the item in the account of $ 5,680.75 shown as cash advanced by Virginia Eckels Malone to the Executor 'to cover estate taxes and administration expenses'.
I am constrained to grant the motion for reconsideration, and further, to find from the entire record in this case that the Executor, notwithstanding his agreement as to proper counsel fee due petitioner Taylor, which agreed fee was approved by the court, has failed and refused to pay said fee although repeatedly requested to do so, and that, as shown by the only known fiduciary account of the Executor, the said account had on the critical dates been depleted to $ 8.36 or less. The Executor made a payment of $ 5,000 to himself. Therefore the court concludes that the Executor has defaulted under the conditions of his bond (Title 28, Section 2403, D.C.Code) and that the surety is therefore liable to petitioner for the agreed and approved fee of $ 3,193.70 less credit for the value of the bonds turned over to said petitioner with knowledge of the surety and held for said surety.
Petitioner will promptly submit an appropriate order and serve copies thereof upon counsel for Executor and counsel for surety.
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