author: Weiant, S.

text:
      In re Lent's Estate.
    (1 Misc. 264.)

      (Surrogate’s Court, Rockland County,

      Filed November, 1892.)
    Administbatoe—Judicial settlement—Joint deposits.
    When it appeared that although an intestate had two deposits in banks in his own name, the same represented the earnings of decedent and of bis brother, the administrator, and as the evidence disclosed that they both worked for about the same period of time at the same wages, held, that the administrator having drawn the entire moneys, was liable to account for one-half thereof, and also held, that as to a third deposit in the joint names of intestate and the administrator, as it appeared that this sum also represented the joint earnings of the brothers, the administrator should likewise charge himself with one moiety thereof.
    Judicial settlement of administrator’s accounts.
    Irving Brown, for administrator; William McCauley, Jr.,, for contestant
   Weiant, S.

Daniel Lent, the intestate, died October 16, 1890. William H. Lent was appointed administrator of his estate on December 20 of the same year. The administrator, in this proceeding, now renders his account, wherein he charges himself with assets consisting of one-half the principal and interest of a bond and mortgage aggregating $222.50, and credits himself with payments therefrom amounting to $212; thus leaving a balance in his hands of $10.50. The contestant interposed objections by which he alleges that assets have come into the hands of the administrator, for which he has failed to account, and with which he should be charged. The evidence discloses that the intestate, about August 3, 1870, opened an account with the Peekskill Savings Bank, in his individual name, which was continued during his lifetime, and at the time of his death closed, with a balance appearing to be due him from the bank of about $2,800. On January 7, 1891, the administrator collected all of this money from the said savings bank, aggregating $2,821.55, and on the same day Opened an account in his individual name in the same bank, and deposited a like sum of $2,821.55 to his credit. On August 5, 1887, the intestate deposited in his individual name, in the Westchester County National Bank, the single sum of $800. The credit remained there at the time of his death, and the same was paid to the administrator, upon his check drawn as such, on January 7, 1891. On the next, day the said sum of $800 was placed for safe-keeping in the hands of Walter T. Searing, secretary of the Tompkins Cove Lime Company, by which company the administrator was employed. On or about May 20, 1890, an account was opened with the said Peekskill Savings Bank, by the intestate, in the name of “Daniel and Wm. H. Lent,” and which was continued down to the time of his death. On January 7, 1891, the whole of this account was withdrawn by the administrator, being the sum of $709.62, and on the same day he deposited that exact sum to his individual account in the same bank.

The contestant claims, under the proofs adduced, that the administrator should be charged with each of these several amounts of $2,281.55 and $800, and one-half of the $709.62. My opinion is that he should be charged with one-half of each sum. The $2,821.55 is made up of a series of deposits covering the period from August 3, 1870, to January 1, 1891, ranging from $50 to $300 each, and the accumulations of interest thereon. The fact that the account was in the individual name of the intestate makes the claim upon the bank, presumptively, an asset of his estate. It is the rule that a bank, by receiving a deposit, becomes a mere debtor to the depositor. People v. Mechanics’ Sav. Inst, 92 N. Y. 7; Whitlock v. Bank, 36 Hun, 460. The deposit, when made, becomes the property of the corporation. The depositor is a creditor for the amount of the deposit, which the corporation becomes liable to pay, according to the terms of the. contract under1 which it. is made. Id. Here, then, was a debt, as appears from the account in the bank hook, due to the intestate from the hank, and upon the discharge thereof, by payment of the amount of the same to this administrator, the proceeds became prima facie assets in his hands to full amount, and for which he is accountable as such. But there is evidence submitted that impresses me that the moneys deposited to this account, and which raised this indebtedness 1‘rom the hank, were not wholly those of the intestate1. It appears that this intestate and this administrator were brothers, aged, respectively, "when the former died, about 60 and 58 years; that they had always remained unmarried; that they had always lived, had their home, and worked, together. A sister kept house for them. They had borne the home expenses together, and their1 earnings, I am authorized to infer, were kept together. The evidence of Hr. Searing shows that, they worked for the Tompkins Cove Lime Company for thirty years or more; that they were both blacksmiths, and performed the same kind of work and received the same wages; that each worked about the same time, with the exception of a period of about three months in the early part of the year 1890, when the intestate was ill. Their habits, expenses, and mode of life were about the same. They were both of the same mind in that respect, and economical and industrious.. Whichever found it convenient to collect their wages, did so for both. The lime, company kept but one account against them, and that was in the name of Daniel, the intestate. They collected their wages weekly, semimonthly, or monthly, according as the company paid, on its pay day. It also appears that soon after the savings hank account was opened, in 1810, the intestate signed an order in the hack part of his bank book containing such account, whereby lie requested the hank to pay William H. Lent, this administrator, “the whole or any part of the money due, or which may bo due, me from said bank,” etc. It- is fair to infer that he did this because his brother had a like interest as hmself in the account. The evidence shows that the intestate could write, that this administrator could not, and that the testator was the one who transacted all business in which both were interested. From these facts, and all the circumstances, I am led to believe that these two brothers accumulated their net earnings, placed them together, and deposited the same in this bank, to the credit of the intestate, in about equal amounts, and that, notwithstanding that the account was in the name of the deceased brother, the moneys so deposited were equally those of the administrator, and that while the debt of the bank for the same was, upon face thereof, one to Daniel, yet, in reality and truth, it was one in which William had an equal interest. The testimony of Mrs. Osborne, a sister, and of William IT. James, a neighbor, is corroborative of this view. It appears, also> that these brothers acquired and held other property jointly, and through their joint earnings. It is therefore my judgment that the administrator should be charged with but one-half of the sum collected on that account. What has been said touching this sum of $2,821.55 is alike applicable to the deposit of $800 in the Westchester County National Bank. It represented, I am led to believe, an accumulation, also; of the earnings of the two brothers, in which each had an equal interest, and that but one-half of the sum paid to the administrator by that bank should be charged to him on this accounting.

We come now to a consideration of the account which stood in the joint names of the brothers. The funds deposited to the credit of this account were also the earnings of both. Indeed, the account was opened by a deposit of $400 on May 20, 1890; being the same day that the individual account of Daniel shows that a like siun was drawn therefrom. This also adds another circumstance to those above advanced, showing that both brothers were interested in the moneys deposited to the individual account of Daniel. The account being in this instance in the name of both, upon its face the legal conclusion is that it created a debt in which each was equally interested, and the facts and circumstances, and the presumed legal liability, are thus in accord. But it may be suggested that here -was a joint tenancy, and the principle of survivorship applies, which exists in the case of a joint tenancy in lands. 2 Kent, Comm. 350. This form of tenancy is not favored. The common-law rule was reversed by statute as to lands (1 Rev. St. p. 727, sec. 44; 1 Willard, Real Est 177 et seq.), and the courts have applied the same rule as to personalty. The unities requisite to constitute that estate are lacking. The deposits represented the separate earnings of each. Each contributed to the fund, and, as between themselves, their interests therein were several, and not joint. That doctrine, however, does not apply to a mixture or confusion of goods. Where the mixture is by mutual consent, the proprietors have a joint interest in proportion to their respective shares, and in case of a confusion of goods, where those of two persons are so intermixed that they can no longer be distinguished, each of them has an equal interest in the subject as tenants in common, if the intermixture was by consent. 2 Kent, Comm. 364; Nowlen v. Colt, 6 Hill, 461. But this is not even a case of the intermixture or confusion of moneys; for, as we have seen from the authorities above cited, the moneys, when deposited, became the property of the bank. The liability of the bank was one of debt, and, as to this account, a joint liability to the two brothers-. The principle seems to be settled that the right of action on an obligation to two joint obligees, or on a promise for payment of a sum of money to two joint promisees, vests on the death of one in the survivor. But the right of the deceased obligee or promisee is not extinguished by his death. The survivor will hold the security and the proceeds, as trustee, to the extent of the interest of the detceased joint obligee or promisee in the debt or fund. Mulcahey v. Bank, 89 N. Y. 438. Their interests, as between themselves, were several, not joint. Id.; Gaffney v. Administrator, 4 Dem. Sur. 223. Where money was deposited in a bank in the names of a man and his wife, of which money the husband was the sole owner, upon the' husband’s death the fund belongs to his beneficiaries, notwithstanding the form and mode of the deposit. Wortman v. Robinson, 44 Hun, 358. The administrator must so adjust his accounts as to charge himself with one-half of these several sums of $2,821.55, $800, and $709.62, and the accumulations of interest thereon, and account for and distribute the same as a part of the estate of the intestate. Let a decree be entered accordingly; costs to both parties to be paid out of the estate.


source: Caselaw Access Project

author: Taylor, S.

license: Public Domain

text:
      In re Lowman’s Estate.

      (Surrogate’s Court, Chemung County,

      Filed July, 1892.)
    1. Will—Undue influence—Drugs.
    In a proceeding to set aside a decree, admitting a will to probate, on the ground of undue influence, contestant insisted that from the fact of the administration of morphine to decedent by his nephew, a physician, to alleviate the pain of inflammatory rheumatism, decedent’s mind had become so impaired that it could be more easily controlled, and that the nephew had administered the drug for the purpose of unduly influencing decedent in the making of his will, held, that as it appeared that decedent was a man of robust frame, strong constitution, temperate in habit and of splendid business attainments, and of perfectly sound mind, and that he had not taken any great portion of morphine up to the time of the execution of the will, and such as he had taken was properly administered for the sole purpose of alleviating extreme pain, no such inference could be drawn from the evidence as alleged by contestant.
    2. Same—Evidence—Burden of proof.
    It was further insisted by contestants that for a long time prior to the execution of the will, testator’s nephew, the physician, had charge of the business affairs of decedent, who deferred to his nephew’s opinion and judgment in the management of some of his affairs, and that there was therefore an opportunity for the nephew to unduly influence decedent in the making of his will. Feld, that undue influence is a fact which must be proven; it cannot be guessed at. The burden of proving that fact was upon the contestants, and unless they established to the satisfaction of the court not only that the opportunity existed, but that it was followed by coercion or fraud, they could not sustain their position. That as there was no evidence that the nephew or any other person than decedent’s legal adviser talked with decedent about the making of any will, or the disposition of his property, either ' prior to or at the execution of his will; that the witnesses to the will positively testified that decedent did not appear to be under the influence of any person, that the disposition of decedent’s property was dictated by the excellent judgment which had characterized all the acts of his life, and that there was no evidence that decedent was unduly influenced by any one between the time of the execution of his will and of his death, the will in all respects conformed to the requirements of law.
    3. Same—Costs.
    When the evidence shows that a proceeding to revoke probate of a will was not brought in good faith, the contestants should be subjected to costs.
    Application to set aside decree admitting will to probate.
    Robertson, Smith & Bull, for contestants; Baldwin & Baldwin, for proponents.
   Taylor, S.

On the 9th day of April, 1891, Jacob Bowman, a descendant of one of the oldest families of this county, and a resident of it all his life, at the age of 71 years, died at his home in the town of Chemung. Previous to his death, and on the 20th day of June, 1889, he had made and executed a last will and testament- which was presented to' the surrogate of this county for probate, and admitted to probate on the 19th day of "November, 1891. On the 11th day of March, 1892, Byman Bowman, a nephew of said deceased, and Phebe Goodwin, a niece, filed a petition in this court for the revocation of the decree admitting said will to probate, alleging thgt, at the time of its execution, the deceased was not competent to make a will, and that the same was procured by fraud, imposition, coercion and undue influence practiced and exercised upon the said Jacob Lowman by certain legatees and devisees named in said instrument, and by persons at their instance, and under and by their direction and connivance; and that said deceased was under the restraint and duress of the said legatees and devisees. A citation was issued upon such petition, returnable May 2, 1892, and issue was joined upon the allegations therein contained, and a large volume of evidence taken in reference thereto. I have carefully read over the large mass of testimony taken in this case, a very considerable portion of which, bearing upon the testamentary capacity of the deceased, is of no value in view of -the admission of the contestants’ counsel that he had such capacity, except as it might) bear upon the question of undue influence. Jacob Lowman was a man of robust frame, strong constitution, temperate in habit, economical in expenditure, a shrewd and calculating man, and of splendid business attainments. For years he had been prominent and well known in the business circles of this county, extensively engaged in lumbering, milling, farming, and the production of butter, until, at the time of his death, he was reputed to be, and probably was, one of the largest owners of real estate in the county; a man of wealth and influence. All of his life, up until within two weeks of his death, he gave personal supervision and attention to the management and control of his vast business interests. It is no extravagance of language to' assert that down to the hour of his death any person who would have insinuated that Jacob Lowman was of unsound mind or incapable to conduct and manage his affairs, would have been regarded as either indulging in wit or sarcasm. He had never married, and at the time of his death he left no nearer relatives than nephews and nieces. It is not contended upon the part of the contestants but what the will admitted to probate, and which this proceeding is brought to revoke, was drawm and executed in conformity with the statutes. It appears from the evidence that some time previous to its execution the deceased sent for his lawyer, Mr. John A. Beynolds, who went to' his home in the town of Che-mung, and there, for nearly half a day, the deceased and his attorney consulted and advised over the disposition of his property. Voluminous memoranda were taken by the attorney, and following the instructions there received, he subsequently drew the will in question, leaving, however, the question of who should he executors, and one or two- minor details, to be considered and settled when it should be submitted to the deceased for his signature. On the 20th of June, 1889, Mr. Reynolds, in comp-any with Mr. Stanchfleld, his -law partner, went to the home of the deceased with the will, which he-had drawn pursuant to the instructions lie had theretofore received from the deceased. It was read over to the deceased; the executors were selected; witnesses were called in and requested to and did sign it, and it. was left with Mr. Reynolds for safe-keeping. There is no pretense upon the part of these contestants that any informality sufficient to be worthy o-f criticism accompanied the execution of this will, but they insist that this instrument does not represent the free and voluntary act o-f the decedent, but is impregnated with the influences which had heretofore surrounded him and been exercised over him by some of the legatees or devisees under this instrument. The only question, therefore, that it is necessary to discuss is whether there is evidence sufficient in this case to uphold the contention of the contestants that the decree admitting this will to probate should be revoked.

The law is well settled that, in order to avoid a will upon the ground of undue influence, the influence must be such as to overpower and subject the will of the testator, thus producing a disposition of the property the testator would not have made if left freely to act his own pleasure; and this must be proved like any other fact; it must not be guessed at. The influence -or importunity must be such as to deprive the testator at the time of the free exercise of his will, whereby the instrument becomes the will of another man, rather than that of the testator. Such undue influence must have been exercised in respect to the very act, and the act must be proved, and" will not be inferred from opportunity and interest Gardiner v. Gardiner, 34 N. Y. 155; Seguine v. Seguine, 4 Abb. Dec. 191; Kinne v. Johnson, 60 Barb. 69; Cudney v. Cudney, 68 N. Y. 148; Deas v. Wandell, 3 Thomp. & C. 128. The influence exerted must appear to have amounted to moral coercion, which restrained independent action, destroyed free agency, or have been such an importunity as the testator was unable to resist, and which constrained him to do that which was against his free will. Society v. Loveridge, 70 N. Y. 387; Merrill v. Rolston, 5 Redf. Sur. 220.

Keeping in view the principles laid down by the courts for the determination of questions of fact arising in contests of this character as above cited, a brief resume of the evidence of the contestants bearing upon this question is necessary for its determination. The deceased, about six months before the time of the execution of this will, had been attacked with inflammatory rheumatism, which the evidence discloses 'was principally confined to his lower limbs; and which, to a greater or less extent, deprived him of that activity of body which he had heretofore uniformly possessed. At times tire disease was so violent that it confined him to his house, and subjected him to severe physical pain and suffering. The physicians who attended him previous and subsequent to the execution of this will were all produced and sworn in this proceeding. They uniformly testify that they saw no evidences of mental unsoundness; that, so far as their observation and knowledge extends, with the exception of this physical incapacity, he was in the full possession of the same strength of character and mental attainments that they had heretofore noticed and observed in him. It appears from their evidence, and from the evidence of some of the attendants who took care of the deceased while suffering from this malady, that for the purpose of alleviating the pain which he endured, medicines were administered to him, consisting sometimes of morphine; and that this medicine was prescribed and furnished by Dr. Everett, who is a physician, a nephew of the decedent, and one of the residuary legatees and executors under this will. It does not appear, ho-wever, anywhere in this case, that at the-time of the delivery to Mr. Reynolds of the memoranda from which this will was drafted, or at the time of its execution by the deceased, that he was in any way under the influence of any narcotic; but, on the contrary, was in full possession of all of his mental faculties; as■ clear, concise, and explicit in his conversation and deportment as he had been at any time of his life. The contestants insist that from this fact of the administering of this drug the mind of the deceased had become impaired to such an extent that it could be influenced and controlled more readily, more easily, and more surely than though it had not been prescribed; and they ask us to infer that it was- administered under the directions of Dr. Everett for the purpose of bringing' about this condition of mind in the decedent which would enable-him more readily to influence him in the disposition of his property and tire making of his will. We do not think any such inference could be drawn from the evidence, if such an inference were justifiable under the law; for it- is perfectly clear to our mind, after reading and considering this evidence, that the deceased had not taken any very great portion of morphine up to the time of the execution of this will; and such as he had taken was properly administered for the sole purpose of alleviating and allaying the extreme pain which he suffered from the malady above referred to>. And while it is not. material to a decision of this case, we think justice to the parties requires us; to say that this theory advanced by the contestants is wholly without foundation, and that no person connected with or attending the decedent during all of the time of that painful illness which eventually- ended his life, administered to- him any medicines except in the utmost good faith, and founded upon the belief that they were the proper remedies to administer in connection with his complaint.

It is insisted, however, by the contestants, that for a time previous to the execution of this will—what length of time, however, is not clearly developed—Dr. Everett had charge of some of the business affairs of the deceased. That the deceased consulted him, and deferred to his opinion and judgment in the management of some of his affairs, is very clear. As has been stated, the decedent’s business was not only extensive, but diversified. Dr. Everett was apparently one in whose judgment the deceased had some- degree of confidence. He was engaged in the drug business in the city of Elmira, running and operating a store; and the deceased frequently visited him, and frequently consulted him, and often left to his management and decision some of his matters of business; and from these facts the contestants’ counsel contend that there was an opportunity for Dr. Everett to exercise upon the mind of the deceased undue influence in the making of this will. But, as we have seen, undue influence is a fact which must be proven; it cannot be guessed at The burden of proving that fact is upon the contestants, and unless they have established to the satisfaction of this court not only that the opportunity existed, but that it was followed with coercion or fraud, they cannot sustain their position. It is important, as bearing upon this question, to again recur to the time of the execution of this will. Not a scintilla of evidence has been produced that previous to its execution did Dr. Everett or any other person except the deceased’s legal adviser ever even talk with him about the making of any will or the disposition of his property. At the time of the giving of the instructions to his legal adviser, none, of the beneficiaries under this instrument, whom it is sought to charge with improper or undue influence, were present. At the time it was signed and executed, no one participated in that transaction except the decedent’s legal adviser and the persons who were requested to sign it as witnesses; and the persons present at its execution, and who signed it at the request of the deceased as witnesses, have, in the most positive and emphatic terms, testified that the deceased appeared to be, and they believed he was, not under any restraint or influence whatever from any person. How, then, it can be seriously contended that, in the entire absence of any proof, the deceased up to the time of the execution of this solemn instrument had been even approached upon the subject of the disposition of his property, that he was hot a free agent and acting as his own conscience and judgment dictated to him, is almost beyond the bounds of comprehension or belief. The largest portion of the testimony offered by the contestants in this case as bearing upon the question of undue influence related to circumstances and incidents subsequent to the execution if this will, and running down to the time of the death of the testator. We have carefully read and considered it all, and fail to find from it a single fact or circumstance which would justify even the inference that the deceased was under the control or constraint of any human being at the time he executed this will. In fact we are constrained to say from this evidence that this proceeding is wholly without merit, and can only be accounted for upon the ground that the custom has become quite prevalent that., so soon as a man dies, leaving a large estate, it is the signal for legal controversy, oftentimes brought for no othes purpose and with no-other object in view than to harass and annoy the beneficiaries under a will, so that a settlement might be accomplished. It is proceedings of this character which, to a large extent, have created the public opinion that the administration of justice can be trifled with, and estates frittered away, under the withering process of litigation. Our final conclusion, therefore, is that Jacob Lowman, at the time of his decease, was fully competent in all respects to make a will. That he was in the full possession of his mental faculties, and not under the restraint, influence, or coercion of any person whatever, and the disposition of his property was in accordance with his wishes and desires, and dictated by that excellent judgment which had characterized all the acts of his life; that the will in all respects conforms to the requirements of the law, and the decree heretofore made admitting it to probate must stand, and this 'proceeding must fail. We have only to add that from the evidence we conclude that this proceeding was not brought in good faith, but for some ulterior puipose, and therefore the contestants should he subjected to the costs of this controversy. An order will therefore he entered dismissing these proceedings, with costs against the contestants.


author: McLaughlin, S.

text:
      In re O’Connell’s Estate.

      (Surrogate’s Court, Essex County,

      Filed November, 1892.)
    Debts—When policy moneys applicable in payment.

      A universal devisee and legatee under a will, who after the resignation of the executor, became administrator with the will annexed, cannot, until decedent’s debts are paid, retain the proceeds of a fire policy upon a house and barn upon the real estate devised to him, on the ground that on the renewal of such policy held by decedent he had instructed the insurance agent to have such proceeds made payable to himself personally, and not to decedent’s estate. Such proceeds could only belong to him when decedent’s debts and legacies were paid.
    Petition by A. S. Prime, a creditor of decedent, for an order that petitioner’s claim he paid by the administrator with the will annexed, out of moneys of the estate alleged to have been received by him.
    F. A. Smith, for petitioner; P. C. McRory, for administrator c. t. a.
   McLaughlin, S.

Michael O’Connell died in 1884, leaving a last will and testament, by "which he devised, subject to the payment of his debts and the payment of certain legacies, all his real and personal estate to his only son, Michael, the contestant, and the present administrator with the will annexed. At the time of O’Connell’s death he was possessed of real estate of the value o'f $1,350, and also personal property of the value of about $316. The will was admitted to probate, and letters testamentary thereon issued, on the 15th day of January, 1887', to the executor named in said will, one William J. Harrington, who qualified and continued to act as executor until September, 23, 1889, when a judicial accounting was had in this court, and a decree entered. This decree shows that the total amount of personal estate which had come to the hands of the executor was $316.38, and the total expenses of administration $395.73, and that valid claims against the estate had been presented and allowed, amounting in the aggregate to nearly $900, and among; the other claims presented and allowed was the claim of the petitioner. On the 23rd day of January, 1890, the petitioner commenced proceedings in this court for the disposition of the-real estate of said deceased for the payment of debts, and thereafter said proceeding was prosecuted to a' sale, and all of the real estate of said deceased, on the 26th day of December, 1890, sold, land the proceeds realized therefrom applied towards the payment of debts; not enough, however, being realized to pay the debts in full. After making such application, there remained due the petitioner upon his own claim and claims which had been theretofore duly assigned to him, the sum of $244.91, and no question is made upon this proceeding but that the claim of the petitioner is a valid claim against the estate, and that there is due him the sum of $344.91. On March 23, 1890, and while the proceeding above mentioned was pending for the sale of the real estate, Harrington resigned as such executor, and the present administrator, on the same day, upon his own application, was appointed administrator with the will annexed. At the time of the death! of the deceased he held a policy of fire-insurance upon the house and barn which stood upon the real estate above mentioned, which policy of insurance was thereafter, and while Harrington was executor, twice renewed, or new policies issued. The last policy so issued expired April 20, 1889, and on that day, at the request and on the application of the contestant, a new policy of insurance was issued by the Aetna Fire Insurance Company upon the house and barn, the loss, if any, being made payable to the “estate of Michael O’Connell, deceased.’’ On the 30th day of January, 1890, tho house and barn mentioned in the policy were destroyed by fire, and thereafter the contestant, as the “administrator of the estate of Michael O’Connell, deceased,” made proofs of loss, and verified the same by his affidavit, in which he stated, among other things, that the property destroyed belonged to the “estate of M. O’Connell, deceased,” and immediately thereafter, and on the 6th of March, 1890, the insurance company paid to the contestant., “as the administrator of M. O’Connell, deceased,” the sum of $100, in full for such loss, and the said Michael, as the administrator of the estate of his father, gave to said insurance company his written receipt therefor. It is conceded that the property destroyed belonged to the estate of Michael O’Connell, deceased, and that any loss occurring thereunder was, by the terms of the policy, made payable to said estate. It is also conceded that the contestant, as the administrator of the said estate, made proofs of loss, received the insurance money, and receipted-for the same as such, and that he has never accounted for this money, or any part of it. The claim of the contestant is that the money received from the insurance company does not belong to the estate of Michael O’Connell, deceased, but that it belongs to him personally, because, when the policy was issued, he instructed the insurance agent who wrote the policy to make the loss, if any, payable to him; and that he personally paid the premium on the policy, and supposed the policy was so issued, until after the loss occurred; that it was made payable to the estate hv the mistake of the agent who wrote the policy. The only question, therefore, presented upon this application is whether the money received from the insurance company is part of the assets of the estate of Michael O’Connell, deceased, and to he administered as such by the administrator, or whether it belongs personally to the contestant.

Conceding the contention of the contestant, viz., that he gave directions to the insurance agent to issue the policy to him personally, and that the same was made payable to the' estate only by a mistake of the agent who wrote the policy; or, conceding that the policy had been issued just as contestant claims it should have been—I am of the opinion that this money would, in that event, belong to the estate, and should be applied towards the payment of the debts of the deceased. The contestant could have no interest in the property covered by the policy, except by virtue of his father’s will. The only right or interest he had, or could have, was by virtue of that paper. The will directs that the property of the intestate shall be first used to pay his debts and certain legacies, then the remainder, if anything, to belong to the contestant. So that the contestant could have no interest in any of the property as against creditors until their claims had been paid; and, while he might assume or attempt to act so as to protect only his own personal interest in the property devised, yet whatever pecuniary benefit was derived from the property for such acts of his must be held to be for the benefit, of creditors until their claims had been satisfied. To hold otherwise would be to defeat the intention of the intestate as expressed in the will. When the contestant assumed to act— assumed to claim an interest in the property, even an insurable interest—he could only do so by first protecting creditors, man- . aging the property as a trustee, as it were, for their benefit. He held all of the property in trust’ for the benefit of creditors and legatees until the debts and legacies were fully paid. It is true, he was not obliged to pay his father’s debts; he was not obliged to pay the legacies mentioned in the will; he was not obliged to do any act in reference to carrying out the intention of his father as manifested in the will; but when he once assumed to act, which he did, according to his own contention, by attempting to insure his personal interest in the property devised, then that moment there was a legal obligation on his part to so use and protect the property devised that it should first pay the debts of the deceased. But the contention of contestant that the policy was made payable to the estate by a mistake is not supported by the evidence in the case; on the contrary, the evidence clearly shows that when the policy was issued it was contestant’s intention to protect the interest of the estate, and not solely his personal interest. The policy itself is made payable to the estate. The proofs of loss, which were made out and verified by the contestant himself, state that the property belonged to the estate. He receiped for the money as administrator, and every act which he took in relation to the insurance or the collection of the insurance money would seem to indicate clearly his intention in that respect as above expressed. I am of the opinion, therefore, that the money received from the insurance company belongs to the estate of Michael O’Connell, deceased, and that the application of the petitioner should be granted, with $35 costs, and witnesses’ fees, and $15 fees of stenographer, to be paid out of the estate; and an order may be entered to that effect.


text:
      In re Smith’s Estate.

      (Surrogate’s Court, Rockland County,

      Filed December, 1892.)
    1 Will—When widow entitled to dower in addition to devise.
    A testator directed that “all rents and interest moneys be paid by his executors to his wife,” out of which she should pay all taxes and assessments, the balance, or so much thereof as might be necessary for the purpose, to be used by her in support of herself and family, and after bequeathing his household furniture to his wife, he devised and bequeathed the residue of his estate to his children to be paid to them, in equal shares, as they arrived at the age of 21. Reid, that as dower is favored, and there were no express words, or a demonstration upon the face of the will of the intention of the testator, that the widow should not take both dower and the provision made for her, the widow, was entitled to dower, in addition to what was given to her by the will.

      2. Executor—Sale eor his personal benefit.
    In such ease the executor sold certain lots to persons who did not complete their purchases, as the same were bought in behalf of the executor, his sister or the widow. The nominal purchasers assigned their bids without consideration to the sister, who, after receiving a conveyance thereof from the executor, conveyed same at the executor’s . request to the widow. Held, that although no person acting in a fiduciary capacity can deal with the trust estate to his personal gain or benefit, yet as the sale was not unqualifiedly repudiated by the contestant, the executor would be held to the sale; but even though the-right of repudiation existed, quaere whether the court, under the circumstances, could afford practical relief.
    3. Executor’s account—Credit for widow’s dower.
    On such sale to the widow, the executor cannot be allowed the value of the widow’s dower in a payment to the widow, as the sale made by him must be presumed to have been made subject to the. right of dower, and, if not, the executor was not authorized to purchase her dower, and, on the other hand, if she had no dower, the payment was without consideration.
    4. ■ Same—Repairs to preserve real property.
    An executor has the right to make repairs to preserve the- property and to obtain a proper income therefrom, and proof must be given that such expenditure was not necessary, before the item will be disallowed. . .
    5. Same—Taxes—When payment allowed out of principal.
    As the will expressly provided that the widow should pay taxes out of income, such payments are not chargeable against the principal estate unless it appeared' there was insufficient income for the purpose, and that such payments became necessary for. the preservation .of the estate.
    6. Same—Eire insurance.
    As the executor was clothed with trust authority oyer the estate, items for insurance are proper credits when, although not expressly, they were impliedly, authorized by the will, and the payments were necessary to the preservation of the property.
    7. Same—When costs of repairs will be disallowed.
    In the absence of explanation, an item for repairs to property paid two years after its sale, will not be allowed.
    S. Same—Item personal to executor.
    A credit will not be allowed for the amount of a judgment against the executor’s brother, when it has no connection with the administration of the estate, and the proof shows that it is a personal matter between the executor and his brother.
    8. Same—Expense of resale.
    Items for expenses in making a resale of real estate will be allowed, when the resale was directed by the court, and the sums were necessarily incurred to carry out such direction.
    10. Same—Legal services—When not chargeable to estate.
    Legal services rendered to the widow cannot be charged to the estate.
    11. Same—Goods furnished to widow ob legatee.
    Goods furnished by the executor to the widow cannot be allowed against the principal. Same, if chargeable, can be only treated as a payment on account of income to her, and when the proof is insufficient to establish such, or that value in kind supplied a legatee was a payment on account of the legacy, the credits cannot stand, and the executor must seek redress in some other court.
    12. Same—Payment of interest on executor’s mortgage.
    Payment of interest on a mortgage which was the individual obligation of the executor, given by him upon a lot of the estate after he became the purchaser thereof from his brother, and which accrued between the first sale thereof and a resale ordered by the court, will not be allowed.
    13. Same—Plaintiff’s costs of suits against executor.
    Credit for costs paid in two suits brought in the Supreme Court against the executor will be allowed when the judgment rolls show a recovery against the executor as such, and not against him personally.
    14. .Same—Costs of defending shits against executor.
    An executor does not become entitled to reimbursement for sums expended for legal services by showing the fact of payment, or that he acted in good faith. Upon objection made, he must prove the necessity and value of such services.
    Judicial settlement, of executor’s account.
    Arthur S. Tompkins, for executor; George A. Wyse, for executrix ; Abram A. Demarest, for contestants.
   Weiant, S.

The testator, John T. Smith, died, leaving a last will and testament, which was admitted to probate December 20, 1875, containing the following dispositions of his property: First. He directed his funeral expenses to be paid. Second. He provides that “it is my wish, and I hereby order and direct,, that my homestead farm remain in charge of my executors, to be controlled, worked, and conducted by them as they deem proper until my youngest child shall arrive at the age of twenty-one years.” Third. He gives to two of his sons, Benjamin- and John H., the use of certain store property for three years after his death, without rent, and then adds, “and, should they choose to occupy said premises after three years, I then order and direct that they pay such rent as shall be agreed upon between my said executors.” Fourth. He directs that the moneys, arising from a specified mortgage held by him “be deposited with the Rational Trust Company of the city of Rew York, at interest, in the name of my executors, after paying thereout” a certain note. “Sixth. I hereby order and direct that all rents and interest moneys be paid over by my executors to my beloved wife, -Anna Maria Smith, out of which she is hereby directed to. pay all taxes and assessments to be assessed against my property, the balance, or so much thereof as may be necessary for the purpose, to be .used by her in support of herself a'nd family.” By the seventh item he gives a legacy of $100 to his son Joseph, and, by the tenth, a legacy of $500 to his daughter Deborah, which legacies he directs to be paid as soon as practicable or convenient after his decease. By the eighth provision he provides: “I give and bequeath unto my beloved wife, Anna Maria Smith, all my household furniture, of whatever name or nature whatsoever.” Rinth. He bequeaths the one-half of certain store goods to his son John, and affirms a transfer which he had theretofore made to his son Benjamin of the other half thereof, and subject to the payment of certain debts. By the eleventh provision he disposes of the residue of his estate as follows: “All the rest, residue, and remainder of my estate, both real and personal, T hereby give, devise, and bequeath unto my children, except Joseph (for whom I have made ample provision heretofore), to he equally divided between them, share and share alike, and to be paid to them as they respectively arrive at the age of twenty-one years, as near as the amount ■thereof can be ascertained.” He then adds a provision disposing of shares of such residue in the event of any of his children dying before receiving his or her share, with and without issue. Last. He appoints his said widow executrix, and his sons John H. and Benjamin executors, of his will. All qualified and entered upon the duties of the executorship, and acted therein until about in the year 1885. At that time a judicial accounting was had by the executrix and executors, and a balance of cash was then decreed to be in their hands, of $441.21, and leaving still unadministered and undivided, of said estate, the property and assets now brought into this accounting. Immediately after such accounting, Benjamin resigned as executor. The widow remained executrix, but did not participate in the further administration of the estate. John H. continued, and practically became the sole executor of the will. Among other properties left unadministered and undisposed of at the time of the prior accounting were some lots known as the “Nyack Lots.” These were sold by the accounting executor at public sale, and he charges himself with having received therefor the aggregate sum of $4,715. Of these lots, five were struck off at such sale at certain sums, aggregating $2,255. The persons to whom the lots were struck off never completed their purchases; and, indeed, it appears that the same were being bought in behalf of the executor, his sister, or the widow. Subsequently a conveyance was executed by the executor to his sister Catherine, to whom the nominal purchasers assigned their bids without consideration, and thereafter the sister conveyed the same, at the request of the executor, to the widow, for the expressed consideration of $3,'133.20. This consideration was made up of a valuation of the lots subject to the dower of the widow at $2,000, and her dower estate, which at the-time was computed and valued at $1,133.20, making $3,133.20. The contestants claim that this sale should he held invalid, and the property decreed to be still part of 'the estate, or that, in the event that the same should be permitted to stand, that the executor should not be allowed the credit he has given himself in his account for the dower of the widow, of $1,133.20.

It is well settled that no person acting in a -fiduciary capacity can deal with the trust estate, to his personal gain or benefit. But, as contestants’ counsel does not take the unqualified position of repudiation of the sale, I shall not consider the matter in that vieAv. Even though such right of repudiation exists, I am not convinced that the Surrogate’s Court, under the circumstances, can afford practical relief. Holding the executor to the sale, the question is then presented by the objection of the contestant as to the allowance of the credit of the $1,133.20 for the doAver. This presents the inquiry as to whether or not the widow had a dower estate in the lots conveyed to her, and involves a construction of the testator’s will. The counsel for the contestants claims that the proAÚsion made hy the will for the widow was such that she was put to her election whether she would take the same or claim her dower. This question has received my careful consideration, and I have arrived at the conclusion that such is -not the case. • If lands be devised to a woman, or pecuniary or other provision be made for her by will, in lieu of dower, she shall make her election whether she will take the lands so devised, or the provisions so made, or whether she will be endowed of the lands of her husband. 1 Rev. Stat. p. 741, section 13. When entitled to an election she shall be deemed to have elected to take the devise or pecuniary provision unless, within one year after the death of the husband, she shall enter upon the. lands to be assigned to her for her dower, or commence proceedings for the recovery or assignment thereof. Id. section 14. Many years have passed since the death of the testator, and the widow has made no entry upon the lands to be assigned to her for her dower, or commenced proceedings for the recovery of the same. If, then, such provisions of the will for her were in lieu of dower, she must he deemed to have elected to take the same. Was such provision made in lieu of dower and she put to her election? I think not. There can be no controversy as to the general principles governing the question of election between dower and a provision for the widow in the will. Dower is favored. It is never excluded by a provision for a wife, except by express words or necessary implication. Where there are no express words, as in this case, there must be upon the face of the will a demonstration of the intention of the testator that the widow shall not take both dower and the provisipn. The will furnishes this demonstration only when it clearly appears, without ambiguity or doubt, that to permit the widow to claim both dower and the provision would interfere with the other dispositions, and disturb the scheme of the testator, as manifested by his will. Konvalinka v. Schlegel,. 104 N. Y. 125-129, 9 27.'E. Rep. 868. Judge Andrews, writing the opinion in the case cited, says:

“We repeat, the only sufficient and adequate demonstration which, in the absence of express words, will put the widow to her election, is a clear incompatibility, arising on the face of the will, between a claim of dower, and a claim to the benefit given by the will”—citing many authorities.

It is claimed that under this will there is a trust created in the executors, to hold the estate, and apply the income, and with a power of sale, under such circumstances that the claim of dower is inconsistent with the provisions of the testator’s will, and thus she was put to her election; and the contestant’s counsel cites Savage v. Burnham, 17 N. Y. 561, and Tobias v. Ketchum, 32 N. Y. 319, to sustain this proposition. But Judge Andrews, in Konvalinka v. Schlegel, page 130, 104 N. Y., and page 869, 9 N. E. Rep., thus speaks of such a contention:

“It seems to be supposed that there is a necesary repugnancy between the existence of a trust in real property, created by a will, and an outstanding dower interest of a widow in the trust property. We perceive no foundation for this contention. The mere creation of a trust for the sale of real property, and its distribution, is not inconsistent with the existence of a dower interest in the same property. There is no legal difficulty in the trustee executing the power of sale, but the sale will necessarily be subject to the widow’s right of dower, as it would be subject to any outstanding interest in a third person, paramount to that of the trustee. * * * It has frequently been declared that powers of, or in trust for, sale, are not inconsistent with the widow’s right of dower”—citing authorities.

The learned judge also shows that the cases of Savage v. Burnham and Tobias v. Ketchum, supra, have been misapprehended. So that, if there be a trust in the executors under this will to receive the rents and profits of the realty, and pay them over to the widow, and to receive and invest the proceeds of the sale, or any part of the estate, it is not necessarily inconsistent with the widow’s dower in such property. The testator, hv his will, in the absence of provisions to the contrary, must be presumed to be making disposition only of his own estate and interests, and subject to the interests of all others therein, including the widow’s right of dower. Judge Andrews so holds in Konvalinka v. Schlegel, supra, and reviews the authorities establishing that principle; and, in speaking of the case of Tobias v. Ketchum, he' says the widow was there “put to her election, not because the vesting of the title in the trustees was per se inconsistent with a claim of dower, but for the reason that the will made a disposition of the income, and contained other provisions which would, in part, be defeated if dower would be, or was, insisted upon.” In the case of Akin v. Kellogg, 119 N. Y. 441, 23 N. E. Rep. 1046, the will contained an express provision that the bequests and devises to the widow Avere in lieu of dower. In Re Zahrt, 94 N. Y. 605, it was held that the provision was inconsistent with the assertion of a dower right, and so must be construed as in lieu of dower. The will in that case, after directing the. payment of debts, funeral and testamentary expenses, read as follows: “I give, bequeath, and devise to my wife, Eliza Zahrt, the rents, income, interest, use, and occupancy of all my real and personal estate” —upon certain express conditions. It was held that these conditions would be defeated as to so much of the estate as should be set off for dower, and that the disposition made by the will was so repugnant to the claim of dower that they could not stand together. Here no such conditions are attached. The widow, it is true, is directed to pay all taxes and assessments that may be assessed against the property out of the rents and interest, but I do not perceive that this is inconsistent with her ■estate of dower.

It may be said that the provision of the will directing that the homestead farm remain in charge of the executors, to be controlled, worked and conducted by them, is repugnant to the estate of dower therein, for the same could not be carried out if the widow be entitled to have a third thereof assigned to her as her dower. But as stated by Judge Akdbews in Konvalinka v. Schlegel, supra,, the testator must be presumed to be making disposition of his property only and subject to the dower. As we have seen from the authorities, the fact alone that a power of •sale is given, and with a trust, is not sufficient to put the widow to her election; and I do not understand that the fact alone, in addition that she is given, either directly or through trustees, the income of the estate, will necessarily put her to an election. But when a trust is created to receive the rents, profits and income, and apply the same according to the provisions of the will, in such manner and for such purposes as are inconsistent with the widow having her dower, then she must elect. This I "understand to be the rule as deduced from the cases as reviewed and criticised in Konvalinka v. Schlegel, supra. It appears from the authorities that, where provision is made for a widow, it is deemed to be in addition to 'her dower. In Church v. Bull, 2 Denio, 430, the widow was given the whole of the testator’s estate, real and personal, for life, or until she should remarry, and in Lewis v. Smith, 9 N. Y. 502, there was a devise to the widow of the "whole estate for life, and yet in each case the provision was "held to be in addition to dower. The fact that in this case she receives the income and rents through trustees, while in those she received it directly, seems to me to raise no distinction that can be invoked to defeat her dower. In those cases the widow was given the benefit of the estate for life, or until remarriage. Here she receives the same only until the youngest child arrives at 21 years of ago, when her interest in the estate under the will is entirely gone. Did the testator intend to not only deprive his widow of the income, by these provisions, but also of her dower? A provision, also, bearing against the claim that the testator intended the provisions of the will for his widow to be in lieu of dower, is that he disposes of his estate so as to deprive his widow of any interest therein,, or benefit therefrom, as rapidly as .each child arrived at 21 years of age, and even the homestead farm passes into the control of the children, absolutely, when the youngest child reaches that age. Even at the time of making his will, it may be inferred,, from circumstances appearing therein, that some of his children ■were then near the age of 21 years. Even the rents and income, during such time as she was entitled to receive the same, were to be applied by her to the support of her children as well as herself. My conclusion, therefore, is that the credit of $1,133.20, as a payment to the widow for dower in the executor’s accounts, is not a proper one, and authorized to be made-by him, as executor; for the sale made by him must be presumed to have been made subject to the right of dower of the widow, to the extent of the prices at which the lots were sold, and, if not, the executor was not authorized to purchase her dower. On the other hand, if my conclusion be erroneous—that she had a right of dower—then the payment was without consideration, and wrongfully made, as she had no estate for which she should have been compensated.

Objection is made by the contestant to various items of credit in the accounts of the executor. The one of $161.38, for repairs on the Third avenue property, I think, should stand. The evidence shows the same to have heen paid by the executor; There is no proof that the same was not necessary. I think the executor had the right to make repairs to preserve the property, and to obtain a proper income therefrom.

The items for taxes, it seems to me, are not chargeable to the principal estate. The will expressly provides that the widow shall pay the same out of the income. They were not payable out of the principal estate, and, in any event, not until it appeared there was insufficient income for that purpose, and that such payment became necessary for the preservation of the-estate. Of course the taxes paid by the executor are proper-credits against the income fund.

The items for insurance, I think, are proper credits. Such payments are not expressly authorized by the will, but I think they are impliedly authorized. The executors appear to have-been clothed with a trust authority over the estate, and it seems-to me that they should be credited with the payments which are-proper in the management and preservation of the properties under their charge.

The item of $40.09 for repairs on the Mt. Moor Hotel appears to have been paid in the year 1887. The testimony of the executor shows that this property was sold in the fall of - 1885. I am therefore unable to understand how these repairs-are chargeable to the estate, and the same must be disallowed.

The item of $63.63, being the amount of a judgment against his brother David, it does not appear has any connection with the administration of the estate. So far as the proof shows, it is a personal matter between the executor and his brother.

The credits $9.50, $25 and $25, for expenses incurred in making the resale of the Third avenue property, I think, should stand. This resale was directed by the court, and the same seems to have been necessarily incurred to carry out such direction.

The item of $76.25, being the hill of Mr. Stafford for legal services, is not chargeable, except in part, to the estate. For preparing the deeds of the Eyack lots, and incidental services in that behalf, he served the executor, but in other respects he appears to have acted for the widow. The same may be allowed as a credit to the amount of $20, the balance being disallowed.

The credit of $1,218.01, for goods claimed to have been furnished to the widow, cannot stand against the principal estate. If the same is chargeable, it is only against the widow, to whom he claims to have furnished the goods. But I do not consider the proof sufficient to establish the same against her, as a payment on account of the income. If the executor has a claim for this merchandise against the widow and minor children, it appears to be an individual one, for which he must se.ek redress in some other court. The same may be said of the item of ■$280.97, for goods furnished to the legatee and devisee Loretta Storms. I find no sufficient proof to establish this as a payment, and it is only upon such a basis that the same may stand as a credit. Eo vouchers appear for the payments to this legatee.

As to the $162, paid Polly Demarest, for interest that had accrued between the first and second sales of the Third avenue parsonage lot, I am unable to see from the evidence that the same should stand as a credit. This mortgage was an individual obligation of the executor, given by him upon this lot after he became the purchaser thereof from his brother David. The payment of the interest was the discharge of his personal obligation, and I fail to see, from the evidence, how it became one that should be charged against this estate.

The credits for the costs paid in the two suits brought against the executor by his brothers Benjamin and Charles, for the respective sums of $251.98 and $221.55, should be allowed, as the judgment rolls show a recovery thereof against the executor, as such. It seems to me that, under the proofs, I am bound to regard the same as sums for which the estate is chargeable. If the executor had been deemed-chargeable personally, it would seem that the Supreme Court would have so decreed. Although it seems, however, that though not charged against him personally, that is not conclusive that they were incurred in good faith. Tucker v. McDermott, 2 Redf. Sur. 319. As to whether or not the executor is entitled to be reimbursed for expenses paid or incurred by him for counsel and attorneys’ compensation in the prosecution or defense of suits by or against him, as such, depends upon the nature of the suit, and his good faith in the matter. Redf. Pr. 473; Code Civil Pro. section 1916. In all cases, executors and administrators are entitled to such allowance for their actual and necessary expenses “as shall appear just and reasonable.” 2 Rev. St. p. 93, section 58, as amended by chapter 362 of the Laws of 1863. An executor does not become entitled to reimbursement for sums expended for legal services by merely showing the fact of payment, nor even, in addition, that he has acted honestly and in good faith. Upon objection made, he must prove the necessity and value of such services. St. John v. McKee, 2 Dem. Sur. 236. An executor or administrator is bound to satisfy the surrogate of the necessity and reasonableness of the claim made by him for sums expended as counsel fees. Willson v. Willson, id. 462; In re Peyser, 5 Dem. Sur. 244. I am not satisfied, from the proofs, that there was any good reason for the executor defending these suits in which these expenses were incurred, or that he exercised good faith and fair judgment in refusing the demands of the plaintiffs before suit, and thus forcing the litigation. However, I do not pass conclusively upon these allowances claimed for counsel and attorneys’ charges, hut reserve my determination until the settlement of the decree. Indeed, as to all these items of disbursement, I will hear counsel further upon such settlement, so that I may correct any erroneous impressions I may now entertain as to them, or any of them. A separate statement of principal and income should appear in the accounts. Let a decree he presented for settlement and entry, accordingly, upon notice; costs to he then adjusted.


author: Davie, S.

text:
      In re Williams' Estate.
    (1 Misc. Rep. 35.)

      (Surrogates Court, Cattaraugus County,

      Filed September, 1892.)
    1. Real estate—Sale to pay debts.
    A petition, for sale of real estate to pay debts alleged a large indebtedness of decedent to petitioner, that the only personal property realized by petitioner, as administrator, was $10, and that he had proceeded with reasonable diligence in converting the personal property of decedent into money and applying same to the payment of debts, held, that although the petition, as required by section 2752, subd.' 4, Code Civ. Pro., did not explicitly state what application-had been made of the personal property which came to petitioner’s hands, or the amount which might yet be realized therefrom, yet, .as the petitioner was the only debto'r, and as he could not make payment upon his own claim till it was established, the petition in fact disclosed that the petitioner had made the only legitimate application of the moneys which had come to his hands (viz., to hold same until his claim had been established), and that the amount which might yet be realized therefrom to apply upon his claim when established, was. the sum of $10.
    2. Same—Code Civ. Pro. sec. 2759, subd. 5.
    In such a case, the administrator has proceeded with reasonable diligence in converting the personal estate into money, and applying it in the payment of debts and funeral expenses, within the meaning of Code Civ. Pro. sec. 2759, subd. 5, although he did not actually apply the $10 towards the payment of debts.
    3. Same—Disputed claim.
    In a proceeding for the sale of real estate to pay debts, the court has jurisdiction to determine the validity of any claim, although disputed, even though it be that of the administrator.
    4. Lease—Covenant to maintain lessor.
    A lease for twelve years contained a covenant by lessees that they would maintain lessor during the term, as payment for the use of the premises. Lessor died prior to the expiration of the term. Held, that his maintenance during his life was a full performance of the covenant by the lessees. J

      5. Equitable mortgage—Wiiat constitutes.
    Decedent having leased his farm, subsequently made an agreement with lessee that latter would build a barn thereon, and that lessor would pay him the reasonable value of same on the expiration of the lease, and in case lessor should die meanwhile, lessee should have a legal claim against lessor’s estate for the value of said barn. Held, that although lessor had no personal property at the making of such agreement, lessor did not intend to make the value of the barn a lien upon his estate, but merely made an admission of his indebtedness.
    6. Covenant against cutting timber—Firewood and fencing.
    Such lease contained a covenant by lessee against cutting timber except for firewood and fencing purposes. Lessee, instead of repairing the fences from timber cut on the farm, sold same, and devoted the entire proceeds to purchasing other material which was used in repairing the fences. Lessee did not sell any more timber than was necessary for such repairs. Held, that the covenant was not substantially violated.
    Petition to sell real estate for payment of debts. Granted.
    C. Z. Lincoln, for petitioner; C. D. Van Aernam and H. R. Curtiss, for contestant.
   Davie, S.

—This is a proceeding for the disposition of decedent’s real estate for payment of debts. Lyman Williams died, intestate, April 10, 1885, letters of administration upon his ■estate were issued to the petitioner March I, 1892, and the petition in this proceeding was filed on the 12th of the same month. On the return day of the citation the contestants moved for a dismissal of the proceedings, claiming that the petition failed to comply with the requirements of subdivision 4, section 2752, Code Civil Pro., and that it was insufficient to confer jurisdiction. The motion was at that time denied, but is renewed upon the final submission of the case. The section of the Code referred to requires the petition in a proceeding of this kind, when made by an administrator, to state the amount of personal property of decedent which has come into his hands as such administrator, the application thereof, and the amount which may yet be realized therefrom, and it is undoubtedly true that, if the petition fails to disclose such facts as are required by the. statute to be shown, the surrogate acquires no jurisdiction. In re German Bank, 39 Hun, 181. The petition in this case alleges with sufficient accuracy an indebtedness of decedent to the amount of $1,559, and further states that the petitioner has discovered the personal property of decedent to be insufficient to pay his debts, that the amount of personal property of decedent which has come into his hands as such administrator is $10, and that he has proceeded with reasonable diligence in converting the personal property of said decedent into money and applying the same to the payment of debts. The criticism passed upon the petition is that it fails to explicitly state what application has been made of this personal property, or the amount which may yet be realized therefrom. The circumstances of this case, as disclosed by the petition, are somewhat peculiar. The only indebtedness of the decedent is the claim of the petitioner, and he is the administrator. This being the case, the only application he was authorized to make of the moneys belonging to the estate was to hold the same until his claim had been properly established. He was not authorized to make payment upon his own claim until so established. In re Gardner, 5 Redf. Sur. 14. So then, the petition does, in fact, disclose that the petitioner has made the only legitimate application of the moneys which have come into his hands, and that the amount which may yet be realized therefrom to apply upon his claim when established is the sum of $10. Aside from this suggestion it would not seem that any application or actual paying out of this $10 is a condition precedent to the right of the petitioner to institute these proceedings. The purpose of the statutory requirement referred to. is to prevent a resort to the real estate for payment of debts until it is made to appear that the personal estate, which is the primary fund therefor, is insufficient for that purpose. The law governing proceedings of this kind has undergone various changes. The original statute of 1801 permitted the administrator to institute such proceedings whenever he discovered or suspected that the personal estate was insufficient to pay the debts. The Eevised Statutes of 1830 authorized such proceedings only when it was. made to appear that all the personal estate applicable to the payment of debts had been actually applied, leaving no-discretion whatever on the part of the surrogate. This statute was amended by the Laws of 1837 so as to restore to the surrogate a discretion in the matter. The amendment provided that the surrogate might, in his discretion, order a disposition of the real estate, although the whole of the personal property of the decedent which had come into the hands of the administrator had not been applied to the payment of debts. The present statute permits such a decree to be made when it appears that the administrator has proceeded with reasonable diligence in converting the personal estate into money and applying it to the payment of debts and funeral expenses, and that it is insufficient for the payment of such debts, leaving it to be determined fron^ the facts of each case as to whether the administrator has. used due diligence in this respect or not. Subdivision 5, section 2759, Code Civil Pro. I am of the opinion that- the petition in, this case, showing a somewhat large indebtedness, a very small amount of personal assets, and a valid reason for not actually applying or paying out the same, discloses due diligence on the part of the administrator, and is in substantial compliance with the requirements of the statute.

As already suggested, the only indebtedness of the deceased is. the personal claim of the petitioner, and it is urged by the contestants that the surrogate has no jurisdiction to determine the-validity of such a claim, except upon judicial settlement. This suggestion is based upon the provision of the Code that, “upon the judicial settlement of the accounts of an executor or administrator, he may prove any debt owing to him by the decedent.” It has been decided that the surrogate has no jurisdiction to entertain a proceeding solely for the purpose of proving such personal claim (In re Ryder, 129 N. Y. 640, 29 N. E. Rep. 309) ; but in proceedings for the sale of real estate, Surrogate Courts have jurisdiction to determine the validity of any claim .against the estate, although disputed (In re Haxtun, 102 N. Y. 157, 6 N. E. Rep. 111; People v. Westbrook, 61 How. Pr. 138; Kammerrer v. Ziegler, 1 Dem. Sur. 177; Hopkins v. Van Valkenburgh, 16 Hun, 3). The fact that the claim which is sought to be enforced in a proceeding of this kind is that of an administrator does not deprive the Surrogate’s Court of the power to determine its validity. The principal controversy in. this case arises over the amount and validity of petitioner’s personal ■claim, which arose out of the following facts: On the 10th •day of August, 1880, decedent was the owner of a farm of 237 •acres, and a considerable quantity of personal property thereon. On that day, by an instrument in writing expressing a nominal •consideration, decedent sold all of said personal property to the petitioner and his daughters, Almera A. and Jerusha A. Williams, one-half to the former, and one-quarter to each of the latter. On the same day decedent executed a lease of his farm to the same parties for a term of 12 years from March 1, 1880. This lease contained the following agreement:

“And the said parties of the second part covenant that they will pay to the party of the first part for the .use of said premises as follows: That they will board, clothe, take care of, and support the said Lyman Williams on the said premises during ■ said term of twelve years.”

The lessees continued to operate said farm together until September 13,' 1881, when Almera assigned her interest in said lease and personal property to the said petitioner, and on February 10, 1882, the other sister assigned her entire interest to him. On the 25th day of October, 1881, decedent and petitioner entered into a contract in the'following form:

“Whereas, I have let my farm in Mansfield, Catt. Co., N. Y., for the period of twelve years to my son, John Williams, and whereas, a new barn is necessary on said farm for the use of the same, it is therefore agreed between myself and my said son, John Williams, that he may erect a barn on said premises, and ■that I will pay him what the same is reasonably worth at the time of the expiration of his said lease, in case he should not in the meantime become the owner of the premises; and in case I should die before the expiration of the said lease he shall have a legal claim against my estate for the reasonable value of said barn.

Lyman Williams.

“Dated Oct. 25, 1881.”

Petitioner constructed said barn in compliance with said contract, and the same was reasonably worth $1,227 at the date of the expiration of said lease. The decedent was supported and maintained on the premises to the time of his death. Petitioner ■continued to occupy the farm after decedent’s death under said lease until the expiration of the term. It is urged on the part ■of the contestants that, inasmuch as the petitioner occupied the farm from April 10, 1885, the date of the death of the decedent, to the expiration of the term of the lease, March 1, 1892, without paying rent, the fair rental value of the farm during said period, or a sum equal to the support and maintenance of decedent during that time, should be set off in this proceeding against petitioner’s claim. Assuming a claim for unpaid rent against the petitioner to be a proper counter-claim, the question arises, does the petitioner owe any sum for the rent of the farm ? What was the intent of the parties in making the lease ? Was it the design that the care and maintenance of the decedent should operate as a satisfaction of the rent to the time of decedent’s death only, or during the entire term in case decedent died prior to the expiration of the term ? These are somewhat novel questions, but I am firmly of the opinion that the maintenance of decedent during his life was a full performance of the conditions of the lease on the part of the petitioner. At the time of making the lease, decedent was an aged man residing on said premises with the lessees, and his evident design in making such lease was to give the lessees the use and occupancy of the premises during the term, securing to himself, however,, a suitable provision for support during such part of the term as he might need the same. This was all that decedent expected; it was not anticipated that a money rent was to be paid during-any portion of the term. Supposing the decedent, instead of dying on April 10, 1885, had then become, and during the balance of said term remained, a helpless invalid, no one would, claim that petitioner could avoid the responsibility of taking care of and supporting him, although such care might be worth many times the rental value of the farm, and petitioner could not have relieved himself from such liability by abandoning the possession of the premises. There can be no equity in holding that it was the intention of the parties that all the probable advantages of this arrangement were to inure to the decedent, and all the disadvantages to the petitioner. If the decedent had voluntarily removed from said premises without the fault of the petitioner, and had not asked for or demanded his support, no claim could have been made against the petitioner upon his covenant in the lease. Pool v. Pool, 1 Hill, 580. It cannot be held that the death of decedent during said term, .thereby terminating the necessity for his further maintenance, ended the-lease so as to render petitioner liable for the use and occupation of said premises thereafter, or that his death so operated as to change the covenant of the lessees to maintain decedent into an obligation to pay money rent. It must be held that petitioner has fully satisfied all claims against him for the use of the premises during said term.

Contestants further urge that, if petitioner has any valid claim, the amount thereof is made a charge upon decedent’s real estate, and that for that reason these proceedings cannot be maintained. This claim is based upon that provision of the Code-authorizing a creditor of a decedent, other than a creditor by judgment or mortgage which is a lien upon the decedent’s real estate, to institute proceedings of this character. Code Civil Pro. section 2750. The contract under which petitioner’s claim arose provided that, in case decedent should die, petitioner should have a legal claim against his estate; and, in view of the fact that at the time of making such agreement deceased had no-personal property, it is asserted that this contract was in the nature of an equitable mortgage on the real estate. While it is true that an equitable mortgage may be constituted by any writing from which the intention to mortgage may be gathered (Payne v. Wilson, 74 N. Y. 348), the statement referred to in the contract for building the barn does not evidence an intent on the part of deceased to make the reasonable value of this barn a lien upon his real estate. TheTnost that can be claimed for such statement is that it is a solemn and formal declaration and admission on the part of the decedent of an indebtedness ágainst the estate.

Again, contestants assert that the evidence discloses a violation of the covenants in said lease on the part of said petitioner against the cutting of timber on said farm. The lease gave petitioner the right of cutting timber for firewood and fencing purposes. It became necessary, from time to time during said term, to rebuild and repair the fences on the farm. The petitioner in some instances, in place of building such fences from the timber on the farm, sold timber therefrom, and with the proceeds of such sale purchased other material for fencing, which was used on the farm, and it does not appear that petitioner disposed of any more timber than was actually necessary to keep said fences in repair; and, so long as he used the entire proceeds of the sale of timber for the purposes of refencing, the contestants have no substantial cause of complaint. The farm at the beginning of the lease was supplied with road line and division fences to some extent. In the operation of said farm it became necessary to rebuild a portion thereof, to remove other portions, and to erect new division fences where none had been before. It is claimed by contestants that petitioner did not leave the fencing in as good condition as when he took possession, but such claim is not supported by the evidence. I fail to discover, from a careful examination of all the evidence, any substantial breach of any of the covenants of said lease on the part of petitioner.

A decree should he made directing a disposition of the real estate described in the petition, and establishing petitioner’s claim to be as above stated, to wit, $1,227 for the building of said ham, and $59 and interest on the same from July 10, 1885, for funeral expenses paid by petitioner.