text:
      In re Saunders’ Estate.

      (Surrogate’s Court, Cattaraugus County,

      Filed June 12, 1893.
    1. Executors and administrators—Negligence—Personal liability.
    When an invalid claim is presented to an administrator, and he, although doubting its validity, yet willing to have it in some manner made binding upon the estate, agreed to refer it, but neglected to employ counsel to protect the estate before the referee, neglected to oppose the confirmation of the report allowing the claim, failed to appeal from the judgment thereon, or adopt any other measures to relieve the estate therefrom, he is guilty of such negligence as to render him liable personally, and contestants will not be driven to the expedient of moving to set the judgment aside.
    2. Same—Interest on use of property.
    An administrator will be charged with the value of the use of personal property, consisting of farming stock and implements of husbandry, of which he had the avails between decedent’s death and the sale thereof.
    3. Same—Interest on uninvested moneys.
    An administrator will be charged with interest on moneys of the estate which he might have invested, after allowing him a reasonable length of time (six months) in which to invest it.
    4. Same—Interest upon personal claim.
    An administrator is entitled to interest upon a claim due to himself, although he received funds sufficient to defray same, as he is without authority to retain his own debt till allowed to him by the surrogate upon his accounting.

      5. Same—PbooV of personal claim.
    Existence of an alleged claim due to an administrator must be established by legal evidence. Mere presentation thereof with an affidavit of verification is not sufficient.
    6. Same.
    When an account filed and verified by an administrator claiming a debt due to himself, concedes payments to substantially the full amount of the claim as established, such payments will be set off as against the amount so established, and will not be applied upon that portion of the account which the executor fails to establish.
    Judicial settlement of administrator’s accounts, and proof of a personal claim due him.
    N. M. Allen, for administrator; J. M. Congdon, for contestants.
   Davie, S.

David Saunders died, intestate, át- the town of Perrysburg, Cattaraugus County, March 2, 1891, and letters of administration upon his estate were issued to William Saunders, a son" on the 12th day of the same month. The administrator now presents his accounts for judicial settlement, and also seeks to establish a personal claim against the estate. Various items of the account, as well as a portion of such personal claim, are contested. The intestate, at the time of his death, was the owner of two farms, with a considerable amount of personal property thereon. The larger farm was incumbered by real estate mortgage held by one Webster. Upon the small farm were two mortgages, one for $800, and one for $200, originally given to one Edwards, but assigned to the wife of the administrator prior to the death of the intestate. The bond of intestate accompanied the $800 mortgage, but not the other. The small mortgage was given to secure the repayment of money loaned by Edwards to intestate, but contained no covenant to pay the same, nor does it appear that any note or other written evidence of the indebtedness was given. Shortly after the death of intestate, the wife of the administrator, at his suggestion, and through his advice, began a foreclosure of the $800 mortgage, which resulted in a sale of the premises to the administrator for the sum of $700, and in a deficiency judgment of $320. Very soon thereafter, Webster began a foreclosure of his mortgage, and' prosecuted the same to judgment and sale of the premises, the administrator and his partner, one Taylor, purchasing the same. About the time of this last sale the administrator caused the personal estate of intestate to be sold at public auction, and the same was purchased by the said Taylor, who directly thereafter transferred a one-half interest in the same to the administrator. The total amount paid by Taylor and the administrator for the real estate was much less than the actual value thereof. After the completion of the Webster foreclosure, proceedings were instituted to obtain the surplus moneys arising therefrom, which resulted in an order of the special term of the Supreme Court for the payment of the same to the administrator. The amount of such surplus was $959.03, and was paid to the administrator December 31, 1891. After the foreclosure on behalf of the wife, Mrs. Saunders, was completed, she caused a statement of her claim against the estate to be prepared, setting forth the amount of her deficiency judgment, also the amount of her $200 mortgage, and the same was presented by her attorney to the administrator for payment, who formally rejected the same, and an agreement for a reference of the claim under the statute was prepared by said attorney, a referee selected, and the parties appeared before the referee, the wife accompanied by her attorney, the administrator without counsel, and such formal proof thereupon taken that the referee reported in favor of the entire claim, including the amount of said $200 mortgage, vvhich report was confirmed, without opposition on part of the administrator, and judgment entered thereon; and among the various items with which the administrator credits himself in his account is the total amount of this judgment, and, while contestants concede that it is not permissible in this proceeding to attack the validity of this judgment, they contend that the conduct of the administrator in neglecting to defend against this claim renders him personally liable for all thereof, except the original amount of the deficiency judgment. In other words, the contestants assert that there was no necessity or authority for a reference so far as the deficiency judgment was concerned, and that the expenses of such reference were needlessly made, and that no part of the $200 mortgage was a valid claim against the estate, and that it was solely through the negligence of the administrator that it was permitted to assume the form of a judgment against the estate.

It is undoubtedly true that this judgment itself cannot to any extent be impeached upon this accounting. It has become an absolute claim against the estate, and, in consequence, necessarily payable from the funds of the estate; and the only object-in now examining the merits of the claim, so far as the $200 mortgage is concerned., is to determine whether the facts refute or sustain the charge of negligence made against she administrator; and for such purpose it is competent to inquire, first, whether such'claim was originally valid, and, second, if not, whether the administrator has exercised reasonable care and prudence in defending against it; for, if such claim was in the first instance a valid and binding one, no negligence can be attributed to the administrator for failing to defend, but if originally invalid, and it has assumed its present form in consequence of the collusion, heedlessness, or negligence of the administrator, then he is liable personally. The duties of an executor or administrator in the performance of his trust are well defined. Such acts of carelessness or negligent administration as defeat the rights of creditors, legatees, or other parties entitled to distribution amounts to a devastavit. If one accepts such office, he is bound to use due diligence, and not suffer the estate to be injured through his neglect. He is required to exercise such prudence and diligence in the management of the estate as men of discretion and intelligence in general employ in their own like affairs. Hollister v. Burritt, 14 Hun, 291-293; McRae v. McRae, 3 Bradf. Sur. 199 ; McCabe v. Fowler, 84 N. Y. 314. It is provided by statute that “no mortgage shall be construed as implying a covenant for the payment of the sum intended to be secured, and when there shall be no express covenant for such payment contained in .the mortgage, and •no bond or other separate instrument to secure such payment •shall have been given, the remedies of the mortgagee shall be confined to the lands mentioned in the mortgage.” 1 Rev. St. p. 738, sec. 139. The slightest reference to the authorities bearing upon this question show's that this claim upon the $200 mortgage originally had no semblance of validity or legality r against the estate. The remedies of the original mortgagee "were confined to the land covered by the mortgage, and Mrs. Saunders, tifie assignee, obtained no greater rights. Severance v. Griffith, 2 Lans. 38; Hone v. Fisher, 2 Barb. Ch. 560; Gaylord v. Knapp, 15 Hun, 87; Vrooman v. Dunlap, 30 Barb. 203; Spencer v. Spencer, 95 N. Y. 353.

What, then, was the duty of the administrator upon the presentation of this claim? What would an ordinarily prudent man have done under the same circumstances in the management of his own affairs ? What would this administrator him- ■ self have done had the claimant been other than his own wife ? The exercise of reasonable diligence not only required him to formally reject such claim, but to resist payment, and to resort to the usual methods of defense for the purpose of defeating a recovery thereon. How has he performed such duty? This •question may be best answered by quoting from his own evidence. When this claim was presented by the attorney for the wife, the administrator says:

“I think I asked him if there was not some other way of get■ting at it than for me to allow the claim. He asked me if I would not allow it. He said it could be referred. I think that was the way it was left. I might have asked how or in what way it could be done. He said he could select a referee, with the surrogate’s approval, to inquire into it. I agreed to that. I said I thought that the better way than for me to allow it. He was representing both of us in what he did in the matter. He was my attorney, as administrator, up to that time, and has been ever since. Seems to me he drew up a paper that, day naming a referee, and I signed it. . There was no bond with this mortgage. I owned it at one time. I do not know as I ever knew what point was going to the referee for determination. After this claim was made ont and presented to me, I never went to consult with any other attorney as to what was best for me to do, nor did I talk with any of the other heirs, unless it was Mrs. Weaver, and I don’t know as I talked with her. The hearing -was held at the attorney’s office. The attorney, the referee, my wife, and myself were present at the time of the hearing. I had no attorney there to represent my side of the case. Mr. Allen was there, but I don’t know whether he was acting for me or for her. I gave no proof upon the hearing. I made no opposition to the motion for confirmation of the referee’s report in favor of this claim.”

The evidence shows that the proceedings before the referee were merely formal. The attorney for the wife presented these mortgages, and stated the facts concerning them. No authorities were cited, and no argument made. The report was drawn by the attorney, and signed by the referee; confirmed by the special term, without opposition; and judgment entered thereon. Upon carefully reviewing all the evidence, I am firmly of the opinion that the administrator, while himself doubting the validity of this claim, yet willing to have it in some manner made binding upon the estate, neglecting to employ counsel to represent and protect the interests of the estate before the referee, neglecting to oppose the motion for confirmation of the report, failing to take any appeal from the judgment rendered thereon, or any other measures to relieve the estate therefrom, was guilty of such a degree of negligence as to make him liable personally. I see but little force in the suggestion, on behalf of the administrator, that, if contestants desire to free themselves from the burden of this judgment, they must do so by moving to set the judgment aside. Possibly they might secure relief in that manner, but they should not be driven to that expedient. Adequate relief can be afforded them in this proceeding by holding that the estate has sustained this loss in consequence of the fault and neglect of the administrator, and that he must make the loss good.

But it is suggested that every fact relating to this mortgage in question was fully presented to thq referee, and that the administrator, by the- exercise of the utmost' diligence, could have established no further facts. That may be true, but the difficulty with that proceeding does not seem to have been so much with the facts as with the law applicable thereto. It was no more the duty of the administrator to secure a. full presentation of the facts before the referee than it was to- secure the services of some competent person to present to the referee the legal principles applicable thereto, and it is entirely apparent that the slightest'reference to the authorities above cited would have resulted in defeating this claim. In place of providing the estate with the protection which would have been afforded by the services of a competent attorney upon the hearing, the administrator attends such hearing alone, objects to nothing, but evidently acquiescing in and consenting to all that was,being said- or done to fix this liability upon the estate. In other words, he practically, and it seems to me needlessly and unjustly, submitted to a default in this matter. While it is difficult to understand how the interests of this estate have been in the least subserved by the reference to the claim based upon the deficiency judgment, and while it may be very seriously doubted as to whether there was any sanction or authority for such practice, I am hardly willing to go to the extent of holding that the administrator should be personally charged with the expenses, and disbursements of such reference.

The personal estate of the intestate consisted, in part, of thirty-six dairy cows, one ox team, and one horse team, besides various farming tools and implements. The administrator used such personal property, to a greater or less extent, from the death of the intestate to the sale thereof, on the 3rd of August, 1891, and had the avails thereof for his own individual benefit. The evidence shows that the use of such property during that time was fairly worth the sum of $288, and the administrator ■should be charged with that amount.

No claim is made against the administrator for interest upon the proceeds of the sale of the personal estate, but it is claimed by the contestants that he should be charged with interest upon the surplus moneys received by him as above stated, to wit, $959.03, on December 31, 1891. He accounts for no interest thereon, nor does the evidence show that he has actually received any income therefrom, but there was nothing in the financial condition of this estate which justified the administrator in permitting this fund to He idle and unproductive. He was entitled to a reasonable length of -time in which to invest it. Six months was entirely sufficient for that purpose, and he should be charged with interest thereon after the expiration of six months from date of its receipt by him. Halsted v. Hyman, 3 Bradf. Sur. 426; Redf. Law & Pr. Sur. Cts. (3rd Ed.) 519.

The remaining questions in this case relate to the administrator’s personal claim. A portion of such personal claim consists of three promissory notes made by the intestate, and payable to the order of the administrator. The execution and delivery of these notes is established by the evidence. Their validity as subsisting claims against the estate is substantially conceded. The only question regarding them is as to the time for which interest should be allowed the administrator thereon, the contestants objecting to the allowance of any interest thereon after the sale of the personal estate, and the receipt by the administrator of sufficient funds therefrom to fully satisfy these demands. Executors and administrators are expressly forbidden by statute from retaining any portion of the estate in satisfaction of their own debt or claim “until it shall have been proved to and allowed by the surrogate.” 2 Rev. St. p. 88, sec. 33. Upon the judicial settlement'of an executor or administrator, he may prove any debt owing to him by the decedent. Code Civil Pro. section 2739. But 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. So the situation is that, while the administrator is forbidden by statute from paying his own claim until it shall have been properly established, he is afforded no opportunity, under the rules of practice, of so establishing the same until the judicial settlement of his accounts: It cannot be claimed that the administrator in this case has unreasonably delayed such judicial settlement. He is in no manner responsible for the delays which the law has imposed upon him in the adjustment of such claim, and he should not be deprived of his interest.

The balance of the administrator’s personal claim consists of various items of account for work performed and money expended by the administrator for the intestate from May 27 to-September 26, 1890, amounting in all to the sum of $336.60, The claim is verified in the usual manner, and admits payments-of various sums upon said account, to the amount of $195.45. While the administrator is required to present his claim, accompanied by his affidavit, verifying the same, before it can be allowed (Terry v. Hayton, 31 Barb. 519), such verification in noway establishes the validity of such claim. The existence of the debt must be established by legal evidence. Underhill v. Newburger, 4 Redf. Sur. 499; Williams v. Purdy, 6 Paige, 168. Claims on part of personal representatives against the estates they represent are regarded with more or less suspicion when not- founded upon some written obligation to pay. Wood v. Rusco, 4 Redf. Sur. 380; Kearney v. McKeon, 85 N. Y. 136, 137. Upon the trial no evidence was given establishing, or-tending to establish, some of the items of said account. The-evidence relating to the balance thereof was very slight and unsatisfactory, but perhaps sufficient primo- fac,ie; and, allowing the utmost latitude to the testimony offered in- support of this claim, the total amount of all items proven is the sum of $193.39. It is contended that no part of this amount even should be allowed; that the presumption arising from the giving of the note by intestate to the administrator under date of November 25, 1890, which was after the close of the account sought to be established, is that such note was given in full settlement of all mutual accounts up to that date, and there seems to he some authority for such contention. Lake v. Tysen, 6 N. Y. 461; Maxon v. Scott, 55 N. Y. 249. -It is not, however, necessary to determine to what extent these authorities are applicable to this case, as there appears to be a more serious objection to the allowance of any part of this account. The account filed and verified by the administrator admits actual payments thereon, stating the date and amount of such payments, respectively, aggregating the sum of $195.45. Such admission cannot be overlooked or disregarded in this matter, although there was no other evidence of payment presented on the trial. Such account is in the nature of a pleading. It is a part of the records of the case. It concedes payments to substantially the full amount of the claim established, and there is no authority for holding that such payments should be applied upon that portion of the account which the administrator, in consequence of his disability as a witness, or for other reasons, is unable to establish. But it is urged by the administrator that contestants cannot avail themselves of the admission of payment in the account without coupling such admission with the allegation of indebtedness therein, taking it all together; that we are not permitted to select from the account filed a portion thereof, unfavorable to, and militating against, the administrator, and disregard the other portion in his favor. However much force there may be to these suggestions, the courts have held directly to the contrary. White v. Smith, 46 N. Y. 418.

A decree will be entered in conformity with the conclusions above stated.


source: Caselaw Access Project

author: Davie, S.

license: Public Domain

text:
      In re Howard’s Estate.
    (3 Misc. Rep. 170.)

      (Surrogate’s Court, Cattaraugus County,

      Filed March, 1893.)
    1. Construction of will—Original gift.
    Testator directed that the residue of his real estate should, upon" the decease of his wife, to whom he had given the income thereof for life, descend (inter alia) “to my sisters and their heirs and assigns, and to the children of my deceased brother and their heirs and assigns. The children of any of my sisters or my brother are only to receive the same share that my brother or sisters would receive if they were living at the decease of my said wife.” A sister of testator had died before the execution of the will, leaving a son whom testator had no reason to disinherit. Held, that such son was entitled to take the share his mother would have received had she survived testator’s widow, not by way of substitution, but as a substantive independent original gift.
    2. Same—Lapsed legacy—Residue.
    Such will directed payment of the income to the widow for life or until her remarriage, and in the latter event she was to receive only one-half the income. The widow remarried, and thereupon the executor paid half the income to the testator’s father (to whom testator gave the estate upon his wife’s death) for his life, and upon his decease (prior to the wife’s death), paid a part of the income to one of the residuary legatees under the father’s will. Held, that the. moiety of the income which lapsed upon the widow’s remarriage became a part of the residue.
    3. Judicial settlement—Res adjudicata.
    As such payments to the father had been allowed on a prior account of the executor, the judicial settlement thereof was res adjudicata on the subject.
    4. Accounting—Advancement.
    The payment to the father’s residuary legatee, who was also one of the residuary legatees under testator’s will, should be treated as a payment to her upon her distributive share.

      5. Executors—Death of life tenant.
    The executor will not be charged with interest on the funds of the estate after the death of the widow, when conflicting claims, which are being litigated, are made to the residue, and he holds the funds in readiness to pay the parties entitled thereto on the termination of such litigation. i
    6. Executor—Compensation. , .
    An executor, who is an attorney, will not be allowed compensation for appearing on his own account, and on behalf of others interested, in an action brought to determine conflicting claims to p, residuary share, other than the commissions allowed executors by law.
    7. Same—Tombstone.
    An expense of $300 for a tombstone will be allowed when the estate amounts to much over $6,000, the rights of creditors are not impaired, and the residuary legatees are collateral relatives only.
    Judicial settlement of executor’s accounts.
    Norman M. Allen, executor, in person; J. M. Congdon, for Frank Parsel and others; W. S. Thrasher, for Henry Milks and others; J. E. Bixby, for Charlotte Kavanaugh; D. E. Powell, for Mr. Holtz.
   Davie, S.

Norman Howard died in the town of Dayton, Cattaraugus County, on or about the 12th day of March, 1866, having no children or lineal descendants, and leaving a will ■dated March 10, 1866, which was admitted to probate by the Surrogate’s Court of said county April 3, 1866. Testator left him. surviving, his widow, Betsey Howard, his father, Harry, and mother, Delila, Howard. At the time of the execution of said will, and the death of the testator, he had three sisters living—Charlotte Kavanaugh, Emeline Parsel, and Harriet Parsel. Another sister, Amanda Milks, died several years prior to the death of testator, leaving a son, Henry Milks, who still survives, and is the only heir of the said Amanda Milks, deceased. Alexander Howard, a brother of testator, also died before testator’s death, 'leaving three children—William Howard, J ames E. Howard, and Amanda D. Countryman—all of whom are now living, and are the only heirs of the said Alexander Howard, deceased. Testator’s two sisters, Charlotte Kavanaugh and Emeline Parsel, still survive. The other sister, Harriet Parsel, died April 15-, 1869, leaving her surviving, her husband, who is now deceased, and two sons—George Parsel, who is deceased without issue, and Frank Parsel, who still survives, and who is the only heir of the said Harriet Parsel, deceased. Harry Howard, the father of testator, died May 12, 1881; Delila Howard, the mother of testator, died in the month of August, 1888; and Betsey Howard, his wddow, died on the 21st day of July, 1900. By the terms of his said will the testator bequeathed all his personal property to his widow, absolutely, and also gave and bequeathed to her the use and income of all his real estate, and the interest accruing from investment of the proceeds of sale of such real estate, in case a sale should be made, during her lifetime, but provided, that in case of her remarriage she should'be entitled to only one-half of such use, avails and income after such remarriage. ' Testator designated and appointed Uormaii H. Allen as the executor, and the said widow, Betsey Howard, the executrix, of said will, and authorized and empowered them to sell and convey said real estate, when they should deem it for the best interests of said estate so to do. Testator bequeathed to his cousin Daniel Howard a claim or demand which testator held against him, of about $1J5. He also bequeathed, at the death of his said wife, Betsey, the sum of $500 to his nephew, Arthur Hull; the same amount to Frederick Milks, the son of said Henry Milks; and the sum of $1,000 to the children of his deceased brother, Alexander Howard. After such bequests the said will further provides as follows:

“At the decease of my said wife, all the rest, residue and remainder of my said estate, after paying the bequests before made, shall descend to my father, Harry Howard, if he shall then be living, and, if he shall not be living at the time of the decease of my said wife, then the same shall descend to my mother, Delila Howard, if she shall then be living; and, if she shall not then be living, then the same shall descend to my sisters, and their heirs and assigns, and to the children of my deceased brother, and their heirs and assigns. The children of any of my sisters or. my brother are only to receive the samet share that my brother or sisters would receive if they were living at the decease of my said wife.”

The said widow, Betsey Howard, remarried in about one year after the death of the testator; and after such remarriage, and within about two years from testator’s death, the said executor and executrix, under the power given them in said will, sold all the real estate of which testator died seized, and converted the same into money and securities. The surviving executor, Allen, now files an account of his proceedings as such, for judicial settlement, from which it appears that there is a residuum for distribution under the provisions of the item of said will above quoted; and a determination of the question as to who is entitled to the same necessitates a construction of said item of the will. The question raised is whether or not the said Henry Milks is entitled to share in such distribution.

It will be observed that none of the parties claiming the right!' to participate in such distribution are lineal descendants of the testator. The controversy is one entirely among collaterals, and the claimant is of the same degree of relationship to testator as some of the parties who are contesting his right. Various general rules have been formulated for the construction of wills, but the fundamental principle of interpretation is that the intention of the testator, where such intention can be ascertained and earned into effect, shall govern; and, when the language of a testamentary provision is equivocal or ambiguous such intention must he sought by reference to all the other provisions, and to the attendant facts and circumstances (Ritch v. Hawxhurst, 114 N. Y. 512, 21 N. E. Rep. 1009), and such construction should be adopted as to give effect, if possible, to all the provisions, without rejecting any clause or sacrificing any interest for repugnance, where such provisions can he reconciled (Taggart v. Murray, 53 N. Y. 233), and, where it appears that the testator designed and intended a general scheme for the disposition of his property, such scheme should be carried into effect, when not inconsistent with the rules of law (Roe v. Vingut, 117 N. Y. 204, 22 N. E. Rep. 933). In this case the questions arise—Eirst, was it not the design and intention of the testator,, as evidenced hy the item of the will above set forth, and all the surrounding facts and circumstances, to provide a general scheme for the distribution of the residuum of his estate, after the expiration of the life estate, among certain classes of relatives, the members of such classes to be determined at the time of distribution; and, second, if such was the design, is the claimant Henry Milks included in either of such classes ?

It is entirely apparent that the testator did not design or intend an immediate gift of any portion of his estate to his sister, or the heirs of a deceased sister or brother, with simply the time of payment or enjoyment postponed to the death of the widow. The element of futurity is annexed to the substance of the gift. The particular parties entitled to take could not be determined until the death of the wife. The gift was not to particular persons nom,inaíim, but to certain classes existing at the termination of said intermediate estate. The language of the provision is quite distinct:

“After the death of my said wife, * * * all the rest,, residue and remainder of my estate shall descend * * *' to my sisters, and to their heirs and assigns, and to the children of my deceased brother, their heirs and assigns. The children of any of my sisters or brother are only to receive the same share that my brother or sisters would receive if living at the decease-of my said wife.”

Consequently, I am of the opinion that it should be held that the parties constituting the said classes at the date of the death of Betsey Howard are entitled to take under said provisions of tire will, not in any manner by substitution, but as original legatees. Does Henry Milks belong to either of these classes ? There is no intimation from the evidence in this case, or from the history of the family, that any reason existed to induce testator to discriminate, in the final disposition of his property, against his nephew Henry Milks, no suggestion that the son of the deceased sister did not sustain the saíne relations to the testator as did the children of .the deceased brother, or why one should be less the object of his bounty than the others. Ho ill will on the part of the testator towards Henry Milks is shown, nor does it appear that the testator did not entertain the same degree of love and affection for his sister Amanda, while she was living, as for the other sisters who survived her. Ho facts are presented showing, or tending to show, that the claim of those seeking to deprive Henry Milks of his right to participate is fair, just, or in harmony with the wish of the testator, but we are asked to exclude him simply from an arbitrary reading of the clause of the will referred to, unaided by any explanatory circumstances. This I am not willing to do. It has been distinctly decided that where the language of a limitation is capable of two constructions, one of which would disinherit an heir, and the other not, the latter will prevail. The intent to disinherit will not be imputed to a testator by implication, nor when he uses language capable of a construction which will not so operate. Low v. Harmony, 72 N. Y. 414. It is true that the case cited has particular reference to lineal descendants, but the reason of the rule is equally applicable where the controversy, as in this case, is entirely between collaterals. Of course, Henry Milks could not take any portion of this estate by substitution, but his claim is not based upon any such ground. “Where the children of the deceased person found their claim, not on a mere clause of substitution, but on a substantive, independent, original gift comprehending them, concurrently with another class of objects, the gift will extend to the children of the persons who were dead when the will was made.” 2 Jarm. Wills (Bigelow’s Ed.), 775; In re Crawford, 113 N. Y. 374, 21 N. E. Rep. 142; Teed v. Morton, 60 N. Y 502. It must therefore be held that Henry Milks, Charlotte Kavanaugh, Frank Parsel and Emeline Parsel are each entitled to the one-fifth part of the residuum of said estate, and that the remaining one-fifth part be divided equally between William Howard, James E. Howard and Amanda D. Countryman.

After the remarriage of the widow, Betsey Howard, the one-half part- of all the interest accruing upon said estate, down to the time of her death, was paid to her and to her representatives. The other one-half was paid to Harry Howard during the time he survived after such remarriage. Upon what theory or principle such payment was made to him does not appear, and it is perhaps of little consequence at this time to inquire, for the judicial settlement of the executor’s accounts under date of September 2, 1886, where such payment was allowed and credited, is undoubtedly res ad judicata upon that subject; but it does become a question for determination upon this accounting as to what disposition shall be made of the one-half part of said income accruing after the death of Harry Howard to the time of the death of the widow, Betsey Howard. The said Harry Howard left a will which was admitted to probate, and in which he appointed Emeline Parsel and William Howard executors, and in which certain specific bequests and devises were made, and the residuum of his estate was given to Charlotte Kavanaugh and Emeline Parsel, and since the death of Harry Howard the executor, Allen, has paid from time to time certain sums out of such accruing interest to the said Emeline Parsel, amounting in all to $619. The executors of the will of the said Harry Howard, deceased, derived no title, under his will, or ■from any sofirce, to any port of such accumulating interest. Upon the remarriage of the widow the one-half part of the legacy to her, under the second item of said will, lapsed, and became a part of the estate for distribution. The rule is well settled that, where a will contains a general residuary clause, lapsed .legacies go, not to the next of kin, but into the residue. In re Benson, 96 N. Y. 499; Riker v. Cornwell, 113 N. Y. 115, 20 N. E. Rep. 602. So, then, it must be held that the one-half of such income as accrued upon this estate after the death of Harry Howard constitutes a part of the residuum to be disposed of under the seventh item of said will, and the payments made to the said Emeline Parsel must be treated as an advancement or payment to her upon her distributive' share.

In the account filed, no interest is credited to the estate or charged to the executor after the date of the death of the widow, Betsey Howard, and in the objections filed to said account it is alleged that the executor should be charged with interest from that time. It does not appear from the evidence that any interest or income has been actually received by the executor since the death of the widow. So the question is whether the executor should be charged with interest by way of penalty for not investing the funds of said estate since that time. No. funds or property belonging to the estate came into the hands of the executors, except that specifically bequeathed to the widow, until the sale of the real estate. There were times during the administration of said estate when all the funds thereof were invested, and other times when only a part thereof was, or could he, invested, although the executors used due diligence in making such investments. In the various accounts filed for judicial •settlement, the executors are charged, and the estate credited, with interest upon the entire corpus of the estate, from the time -of the sale of the real estate, at the rate of 7 per cent, to the 1st day of January, 1880, and at the rate of 6 per cent, from that time to the death of the widow, without any deductions whatever for such times as a part of the estate could not be invested. Shortly after the death of the widow the surviving executor began making preparations for closing up the affairs <of the estate, paying the legacies, and attending to such other preliminaries as necessarily preceded a final settlement. In this, however, he was embarrassed and delayed by certain conflicting claims made upon him for payment of some of the legacies and distributive shares. Several persons claimed the share of William Howard, and several actions were brought regarding the share of Charlotte Kavanaugh, and in one of such actions, in which the executor, Allen, and the executrix, Betsey Howard, were named as parties defendant, an injunction was procured and served, restraining and enjoining the said executors from paying over any portion of the share of said Charlotte Kavanaugh until the further order of the court therein. Said suits are still pending and undetermined, without any fault or neglect on the part of the executor; and in view of these facts, and the further facts that the specific legacies were due and payable at the death of the said widow; that said litigations were liable to-be terminated at any time, and said parties, therefore, in situation to demand payment of their respective 'shares—the said executor was justified in holding the funds of said estate in readiness to meet such demands, and he should not be charged with interest because he has exercised such right..

In the various litigations brought in relation to the distributive share of Charlotte Kavanaugh, the executor, Allen, who was an attorney, appeared on his own account, and for certain other defendants who were interested in said estate, and rendered services as such attorney in and about the defense of said actions. While it is clear that such services were rendered in good faith, and for the benefit of said estate, the executor is not entitled to any compensation therefor, other than such commissions as are allowed him by law. Collier v. Munn, 41 N. Y. 143; Lent v. Howard, 89 N. Y. 169.

The remaining question relates to the indebtedness of $300’ incurred by the executor for a tombstone to be placed at the grave of the testator. Shortly after the death of testator the executor caused an inexpensive tombstone to be placed at his grave. The remains of deceased were subsequently removed to another burial place, and thereafter the executor entered into an agreement for the purchase of another tombstone for testator at an expense of $300. The expense of a tombstone, if not excessive, will be allowed to an executor, upon his accounting. Wood v. Vandenburgh, 6 Paige, 277. The term “funeral expenses” includes the cost of a suitable tombstone to be erected at the grave of the deceased. Owens v. Bloomer, 14 Hun, 296. This expenditure being such a one as the executor was authorized to make, the only question is as to whether the amount is reasonable or not. In Re Erlacher, 3 Redf. Sur. 8, where the estate amounted to $2,625, it was held that the administrator should be allowed only $250 of the $700 expended by him for monument, and inclosing burial lot. In Re Mount, id. 9, note, the administrator, out of an estate of $938, paid $425 for funeral expenses; and it was held that only $200 should be allowed for funeral expenses, and $50 for a gravestone. In Valentine v. Valentine, 4 Redf. Sur. 265, an expenditure of $350, where the estate was $13,000, was held not unreasonable. So it is apparent that there is no arbitrary rule for determining the question of reasonable funeral expenses and expenses of tombstone, but each case must be disposed of upon its own particular circumstances. In this case there was originally an estate of over $6,000, with accumulations «thereon to much more than that sum. The rights of creditors are in no manner impaired by the expenditure, and, as against the legatees under the will of testator, all of whom are collateral, it must be held that the expense incurred is reasonable and proper.

(Rote as to expenditure for tombstones, headstones and monuments:)

Statute.—General Observation.—What is a Reasonable Expenditure.—What is an Unreasonable Expenditure.—Bequest or Entire Estate for Monument.— Legacy ror Monument.—Insolvent Estates.

Statute.

It is provided by the Code of Civil Procedure, section 2749, that the expression “funeral expenses” includes a reasonable charge for a suitable headstone.

General Observation.

A reasonable expenditure suitable to decedent’s estate and condition in life will be allowed for the cost of a tombstone. (Wood v. Vandenburgh, 6 Paige, 277; Ferrin v. Myrick, 41 N. Y. 315; Tickel v. Quinn, 1 Dem. 425; Owens v. Bloomer, 14 Hun, 296; Sheelz’s Est. [Pa.], 2 Woodw. Dec. 407; Griffith’s Est. [Pa.], 1 Lack. L. N. 311; Webb’s Est., 165 Pa. St. 330; Griggs v. Vaghte [N. J.], 47 N. J. Eq. 179; Spire v. Lovell [Ill.], 17 Ill. App. [17 Bradw.], 559; Van Enron v. Superior Court [Cal.], 76 Cal. 589; Hatchett v. Curbow [Ala.], 59 Ala. 576; Craps v. Armstrong [Iowa], 61 Iowa, 697.)

But where a decedent was a plain man, of economical and saving habits, a former member of the Society of Friends, s credit of $1,000 for. a monument was reduced to $100, although decedent left an estate of $110,000, as the contrast between a monument costing $1,000 and decedent’s habits and mode of living would be so great as to provoke comment, which such memorials should not do. (Taylor’s Est., 3 Pa. Dist. Rep. 691.)

What is a Reasonable Expenditure.

In Matter of Laud, 42 Hun, 126, an expenditure of $403 for a tombstone out of an estate valued at from $10,000 to $15,000 was held reasonable in amount, considering decedent’s indebtedness at his death.

In Matter of Beach’s Estate, 1 Misc. 27, it was held that $400 for a tombstone out of an estate of $8,000 would be allowed (although the expenditure reached the limit where it might be held to be unreasonable), the rights of creditors not being impaired, and none of the legatees but the widow objecting to the expenditure, especially as the executor had in good faith contracted for the monument, which was ready for delivery.

The expenditure of the sum of $200 for a tombstone out of personal estate valued at $26,000 is"not extravagant. (Campbell v. Purdy, 5 Redf. 434.)

When a decedent’s estate, after paying all debts, would, including real estate, leave a surplus of several thousand dollars, and the administratrix and decedent (her husband) had lived happily together for more than thirty years on the same farm, the court considered that the administratrix had done right in expending $175 for a monument over his grave. (Alien v. Allen, 3 Dem. 524.)

A testator directed by his will that his executor should erect a suitable monument to his memory. Decedent left personal estate to the value of over $226,000, besides considerable real estate. The executor expended $6,000 in the erection of a monument. The testator was in some respects a remarkable man, who had accumulated a considerable fortune, a handsome part of which he bequeathed, on account of their pecuniary condition, to the widow and children of General “Stonewall” Jackson, and a still larger part of which he left for the education of white children in Tennessee. The only objection came from the residuary legatee, the widow approving of the expenditure. Held, that as the selection of the monument in reference to its suitability, was left entirely to the discretion of the executor, the court could not say that the executor, although liberal in his outlay, had so abused his discretion as would justify the interference of the court, especially as it had passed the ordeal of the lower courts and referees. (Cannon v. Apperson, 14 Lea [Tenn.], 553.)

What is an Unreasonable Expenditure.

When the estate amounted to $2,625, an expenditure of $670 for a monument was considered excessive, and $250 only was allowed. The court said that the expenses of a monument should have been postponed till the amount of the estate was ascertained, and that, in any case, they would not be a proper charge as against creditors. (Matter of Erlacher, 3 Redf. 8.)

An expenditure of $500 out of an estate valued at $8,000 was considered excessive. (Owens v. Bloomer, 14 Hun, 296.)

A testator directed, by his will, his. executor to erect a suitable monument over his grave, and left the expense thereof entirely discretionary with him. The executor contracted for the erection of a monument to cost $1,455. The estate was valued at $11,000. Held, that although an absolute discretion was-conferred upon the executor, it should be exercised according" to law and the principles of justice, and the residuary legatee objecting, the proposed expenditure should be reduced to $700. (Matter of Luckey, 4 Redf. 95.)

In Burnett v. Noble, 5 Redf. 69, the executor, who was vested with an absolute discretion for the purpose under the will, asked that $700 should be allowed for a monument, and it was held that as the estate for distribution amounted only to $2,000. a sum of $250 would be a reasonable allowance, as the executor’s discretion should be exercised within the limits of law.

Where the real and personal estate was of the value of $17,000, an expenditure of $2,000 for a vault and tomb was reduced to $1,000, as the court found no sufficient reason in facts or in law for the allowance of so large a sum without express authority in the will. (Matter of Shipman, 82 Hun, 108.)

Bequest of Entire Estate for Monument.

In Emans v. Hickman, 12 Hun, 425, the facts were: Testator made his will as follows: “To my executor, all money in my possession, all money due from any source or sources whatever, and all property of every kind and description held by me, for my funeral expenses and the erection of a monument to my memory in the Purdy yard, Phillipstown, Putnam County.” Testator’s estate amounted to $1,200. The executor brought the action for the construction of the will. Held, that as the will contained no direction to the executor to expend the whole of Ms estate for the purposes expressed, nor contained any limitation of the executor’s discretion on the subject, the testator intended only that a reasonable sum should be expended for funeral expenses and a monument, and that the balance should go to his heirs-at-law; that as no creditor would be injured, and the heirs consented, $150 was a sufficient sum to expend for a monument—and that after such expenditure and the payment of reasonable funeral expenses, the balance was to be distributed amongst testator’s heirs-at-law as in cases of intestacy.

The court observed that “No doubt it was competent for testator to direct that the whole estate should be spent for his funeral expenses, and for a monument,” and that the question was whether the will maMfested such an intention.

Legacy for Monument.

In Masters v. Masters, 1 Peer, Wms. Rep. 423 (6th London Ed.), it was held that a legacy of £200 given by testatrix for a monument for her mother, being a debt of piety to the memory of her mother, from whom the testatrix received the greater part of her estate, should not abate with other legacies, when there was a deficiency of assets, but should be paid in full.

This decision was followed in Wood v. Vandenburgh, 6 Paige, 285.

Insolvent Estates.

A credit will not be allowed for the cost of a headstone where the estate is insolvent. (Villee’s Est., 9 Lane L. R. [Pa.] 353; Little v. Williams, 7 Ill. App. 67; Lund v. Lund, 41 N. H. 355.)


author: Weiant, S.

text:
      In re Hesdra’s Estate.

      (Surrogate’s Court, Rockland County,

      Filed April 28, 1892.)
    1. Executor—Execution'—Leave to issue. \
    The surrogate cannot permit executions to issue on judgments against an executor (Code Civ. Pro. see. 1825) when the assets are small, and the claims, several of which are in litigation, large, as he cannot to a measurably certain extent ascertain and determine the debts and claims against the estate, and the sums for the recovery of which an execution should be permitted to issue (Code Civ. Pro. see. 1826), and when, in any event, the small amount of assets was necessary to meet the considerable expenses attending the litigation of the claims.

      2. Same—Real estate—Equitable conversion.
    Real property directed by the will to be sold for .the purpose of administering the estate, is real property within the meaning of section 1823, Code Civ. Pro., providing that “Real property which belonged to a decedent is not bound * * * by a judgment against his executor * * * and is not liable to be sold by virtue of an execution issued on such a judgment, unless the judgment is expressly made by its terms a lien upon specific real property therein described, or expressly directs the sale thereof,” and does not become equitably converted into personal property so as to enable the surrogate to grant leave to issue execution on judgments against the executor under Code Civ. Pro. secs. 1825-6, which only authorize execution against personal property.
    Applications by creditors who had recovered judgments against decedent’s executor, as such, for leave to issue executions thereon. Denied.
    Charles A. Dunham and J. A. Henderson, for applicants; Bangs, Stetson, Tracy & MacVeagh, for administrator c. t. a.
   Weiant, S.

These applications are for leave to issue execu tions under sections 1825 and 1826 of the Code of Civil Procedure, and were heard together, and submitted upon the petition and affidavits. It appears from the petition and papers-herein that the testator, Edward D. Hesdra, died about June 6, 1884, leaving a last will and testament, of which he appointed Millard F. Onderdonk the executor. That the said will was admitted to probate about January 6, 1888, and that letters testamentary thereof were thereupon issued to said Onderdonk. 2 N. Y. Supp. 82. That in an action brought by the petitionerDunham against said Onderdonk as such executor a judgment was recovered in the Court of Common Pleas of New York City on November 22, 1890, for the sum of $1,182.24. That in an action brought by the petitioner Henderson in the same court against said Onderdonk as such executor she recovered judgment against him as such on May 5, 1890, for the sum of $2,380.46. That thereafter, in a proceeding to remove said executor, a decree was made by this court revoking his letters testamentary, and thereafter, on or about September 18, 1891, upon due application and proceeding, the State Trust Company was appointed administrator with the will annexed of said testator Hesdra—and that said trust company accepted said trust, and entered upon its duties as such; That neither of said judgments has been paid, nor any part thereof. It further appears that very little, if any, personal property was left by the testator, and that his estate consisted quite entirely of real estate, the income of which was received by said Onderdonk while acting-as such executor, and by the State Trust Company since its appointment as administrator aforesaid. The affidavit submitted on these applications in behalf of the trust company shows that at the time of the making of tire same it had in its possession or control as such administrator of assets but $291.87, which sum was cash. That the total amount received by it as such administrator, being income from the realty from the time of its appointment, was $3,323.46, out of which it had paid items of expense incurred in the management of the estate property and the administration of the estate the aggregate sum of $3,031.59. That there are claims against the estate aggregating more than $6,000, and several of which are in litigation; that the condition of the affairs of the estate are intricate and unsettled, and in litigation, and that the expenses of managing the estate and administering the same will necessarily be large. Under this condition of the estate, and upon these facts, I am not convinced that executions should be permitted to be issued upon these judgments. All these claims against the estate appear to be of the same class. A judgment obtained against an executor or administrator as such has no priority of payment over the other debts. Melcher v. Fisk, 4 Redf. Sur. 22; James v. Beesly, id. 236; Schmitz v. Langhaar, 88 N. Y. 503, 2 Rev. St. p. 87, sec; 28.“Where it appears that the assets, after payment of all sums chargeable against them for expenses and for claims entitled to a priority as against the plaintiff, are not or will not be sufficient to pay all the debts, legacies, or other claims of the class to which the plaintiff’s claim belongs, the sum directed to be collected by the execution shall not exceed the plaintiff’s just proportion of the assets.” Code Civil Pro. section 1826. To comply with this provision it is essential that the court should to a measureably certain extent ascertain and determine the debts and claims against an estate. This cannot be done under the proofs which have been submitted to me. Claims against the estate are being litigated to the extent, of some thousands of dollars. It is thus rendered impracticable for me to determine the sum for the recovery of which an execution should be permitted to issue on either of these judgments. In any event, it must necessarily be very small, and I am not prepared to say that the-limited amount of assets in charge of the administrator can, in justice to it and other claimants, be taken or depleted, and applied in payment of these debts, in view of the considerable expenses that seem at all times to be attendant upon this estate-because of the interminable stream of litigation that springs-from its administration and settlement. Sippel v. Macklin, 2 Dem. Sur. 219; Hauselt v. Gano, 1 Dem. Sur. 36; James v. Beesly, 4 Redf. Sur. 236; Schmitz v. Langhaar, supra. It is-only personal property that may be considered as assets within these provisions of the Code under consideration. “Eeal property which belonged to a decedent is not bound or in any way affected by a judgment against his executor or administrator, and is not liable to be sold by virtue of an execution issued upon such a judgment unless the judgment is expressly made by its terms a lien upon specific real property therein described, or expressly directs the sale thereof.” Code Civil Pro. section 1823. To meet this provision, however, and the proposition that there are no assets that can be judiciously and safely applied in payment of these claims, the respective counsel for the petitioners contend that the whole estate must be regarded as oonverted into personal property under the provisions of the will authorizing and directing the sale of the realty for the purposes of the administration and distribution of the estate. It does not seem to me that the doctrine of equitable conversion is applicable in giving a construction to these provisions of the Code. The words “real property” in the section above quoted should be given the signification assigned to them in subdivision 6 of section 3343 of the Code, as “coextensive with lands, tenements, and hereditaments.” The definition of “real property” found in section 2514, subd. 13, cited by the petitioners’ counsel, is not applicable. That applies to matters enacted in the chapter relating specially to Surrogate’s Courts.

We find these houses and parcels of land in question constituting substantially the whole of the testator’s estate, and “which belonged to the decedent,” in the form and of the description stated in the above definition. The statute says such “real property” shall not be sold by virtue of an execution issued upon judgments of the character of these under consideration, and the words are used with the significance of the quoted definition. If an execution were issued, these parcels of real property could not be sold as personal property, and title given as upon a sale of that class of property. It would have to be sold as real property. It seems to me that for the purpose of the enforcement of judgments against executors or administrators by execution, it is the purpose of this restrictive section (1823) of the Code to limit the remedy by execution to reaching such assets as in their form are personal property, known and defined as such under the Code, and to leave the creditor, as to the realty, to his statutory remedies, or to the enforcement of his rights by actions or proceedings in the proper courts. It may well he that, in contemplation of the provisions of the will of the testator, and for thel purposes of carrying the same into effect, and the administration and distribution of the estate, the realty must be regarded and treated as personalty, but I am of the opinion that such principal is not applicable to this question. In James v. Beesly, 4 Redf. Sur. 236, the learned surrogate says: “It is true that in some cases where real estate is directed to be sold by executors it will be regarded as personal property; but not even then is it assets in the hands of an executor.”

I have considered the many authorities cited by the counsel for the petitioners touching the doctrine of equitable conversion, and find that all have relation to the administration of the testator’s etsate, and the effectual and proper distribution and application of the same to accord with his intention as derived from his will, among those who acquire their rights or interests in his estate by virtue thereof, and not in point on the question here involved. So' long as the real property of the decedent remains in the same condition or status that it had at the time of his death it cannot be reached by an execution such as is sought in this proceeding, but I do not determine how it might be considered after the exercise of the power of sale, and an actual conversion thereby made. Of course, I am considering this doctrine of equitable conversion as not applicable to the single question under consideration, and under the circumstances disclosed in this matter. Executions authorized by sections 1825 and 1826 of the Code are such only as: can be issued against personal property or assets which are in the possession or under the control of the executors or administrators, and have no relation to real estate. Lichtenberg v. Herdtfelder, 103 N. Y. 302-306, 8 N. E. Rep. 526. The form of the execution, as no other is prescribed, is that required by section 1369 of the Code, to satisfy the same out of the personal property, omitting the provision as to real property. An execution against personal property in the hands of an executor or administrator must require the sheriff to satisfy the judgment out of that properly. Code, section 1311. The personal property contemplated is such as is aetually such, and not such as is regarded as such in contemplation 'of a “fiction of law” to carry out or give effect to some equitable, principle. The personal property contemplated, out of which the execution is to be satisfied, is that which is susceptible to* levy and seizure by virtue thereof. For tire purpose of' the construction of section 1823 of the Code, I am of the judgment that, tire lands of the testator retain their character of realty, at least until actually converted. While I have thus disposed of these matters upon the assumption that there was an equitable conversion of the real property under the will of the testator, but not, under the circumstances, subjecting it to execution on these.judgments, yet the question as to whether or not such conversion will take place until an actual sale is debatable. Clift v. Moses, 116 N. Y. 144-156, 22 N. E. Rep. 393 et seq.

The applications are accordingly denied, but without costs.


text:
      In re Gerow’s Estate.

      (Surrogate’s Court, Rockland County,

      Filed February 22, 1892.)
    1. Executors—Judicial accounting—Absence of vouchers.
    To entitle an executor to credit for payments for which he produces: no vouchers, he must give competent evidence of such payment “other* than his own oath.” Code Civ. Pro. sec. 2734.
    2. Same—When entitled to retain commissions.
    An executor cannot deduct a sum in excess of his legal commissions, nor can he retain same until judicially allowed.
    Judicial settietment of executrix’s accounts.
    Abram A. Demarest, for executrix; Snider & Hopper, for contestant.
   Weiant, S.

I find from the evidence the receipts and disTyursements of the executrix as set forth in the following summary :

Principal estate:

Amount of inventory ............................ $15,764 72 I credit her as follows: Chattels received by the widow................ $ 47 25 Moneys retained by the widow................ 168 00 Paid for insurance on estate property.......... 13 35 Eeferee’s fees and expenses on sale of Garrabrant property ................................. 46 00 - 274 60 Leaving a balance of the principal estate of.......... $15,490 12

—Subject to other allowances for the expenses of foreclosing the Emily Garrabrant and Amelia Snedeker mortgages, to be determined and adjusted on the settlement of the decree herein.

As against the balance of this principal estate, the executrix is entitled to credit for the following securities and properties in her hands:

Mortgage of Gurnee .................................. $1,000 00 Mortgage of Sipple ................................... 1,500 00 Mortgage of Baker ................................... 100 00 Mortgage of Hamilton ................................ 500 00 Mortgage of John P. Garrabrant ...................... 300 00 Mortgage of Hedges .................................. 4,000 00 Mortgage of Green ................................... 500 00 Mortgage of Scott ................................... 300 00 Mortgage of Wagonhoffer .............................. 1,000 00 Mortgage of Hines . .................................. 1,500 00 Mortgage of Gerow ................................... 1,500 00 Deposit in Irving Savings Bank....................... 10 36 Deposit in Seaman’s Savings Bank..................... 252 62 Garrabrant place, bought in ........................... 338 95 Snedeker place, bought in ............................. 1,500 00 $14,301 93

—Leaving a balance of uninvested funds of the principal estate of $1,188.19, subject to the deductions for the foreclosure expenditures aforesaid, and the lawful commissions of the execu trix, and the proper costs and expenses of this accounting.

As to the interest or income estate, I find that the executrix has received the following sums from the following securities and sources: Scott mortgage, $135; Green mortgage, $240; Emily Garrahrant mortgage, $20; Hedges mortgage, $1,678; John P. Garrahrant mortgage, $74; Garrison mortgage, $6; Baker mortgage, $50; Snedeker mortgage, $450; rent of Snedelcer place, $98; Gurnee mortgage, $480; Sipple mortgage, $720; Riley mortgage, $90; Wagonhoffer mortgage, $420; Murphy mortgage, $24; Hines mortgage, $630; Gerow mortgage, $135; interest accrued on deposit in Seaman’s Savings Bank, $242.12; and interest accrued on deposit in Irving Savings Bank, $103.42; making the total income, $5,595.54. It is admitted by the widow and contestant, to whom the income is payable— and her receipt therefor is filed—that all of the interest was paid over to her during the years 1883, 1884, 1885 and 1886, to the amount of the respective sums of $75, $621, $812 and $752, and that thereafter, in the years 1887, 1888, 1889 and 1890, interest to the amount of the respective sums of $300, $250, $250 and $200 were paid over to her, making an aggregate of $3,260, which, with the sum of $560, of interest due on the Hedges mortgage at the time of the taking of the inventory, and which seems to have been paid over to the widow, as she admits, under a misapprehension, and which I think should be charged against her, makes an aggregate of payments out of the income estate of $3,820, leaving a balance of income of $1,775.54. In making these charges against the executrix, I have charged her with the receipts which she admits in her testimony of November 20, 1891, and shall allow an amendment of the accounts so> as to take in these additional receipts, and also to permit credits for the expenses of the two foreclosure suits. These computations and items will be open to correction on the settlement of the decree.

Upon the claims of the executrix and widow, respectively, there is a large difference as to the payment made by the former to the latter, of income, during the years 1887, 1888, 1889 and 1890. The executrix testifies that she paid Mrs. Gerow the whole of the income, but she produces only one or two vouchers-for such payments, and confesses that she took no others. The contestant objects to the allowance of any payments for which vouchers are not produced. There is no evidence of the payments having been made, beyond the admissions of the widow,, by the receipts which she has presented and filed, except the testimony of the executrix alone. It is true that two or three-payments have been testified to by the witness Arthur G-erow,, but they do not go beyond the amount that the widow admits in her receipt. The question is thus presented whether or not this executrix can be credited, in the absence of vouchers, for further payments, without evidence in addition to her own testimony. Section 2734 of the Code of Civil Procedure provides that “upon an accounting by an executor or administrator the accounting party must produce and file a voucher for every payment, except in one of tire following cases.” Then follow two subdivisions giving these exceptions. No question is raised-under subdivision 1. Subdivision 2 is as follows:

“If he proves by his own oath, or another’s testimony, that he did not take a voucher when he made the payment, or that the voucher then taken by him has been lost or destroyed, he may be allowed any item, the payment of which he satisfactorily proves-by the testimony of the person to whom he made it, or if that-person is dead, or cannot, after diligent search, be found, by any competent evidence, other than his own oath or that of his wife.”1 Here no vouchers were taken. The executrix so confesses. The widow—the contestant—to whom the payments were made,, denies the payments, beyond the amounts stated in her receipt. There is no evidence of tire payments, given by any person, nor any evidence, from any source, of further payments than those-specified in the widow’s receipt, except the testimony of the-executrix alone. As to her, the statute says the “competent evidence” must be “other than her own oath.” If this section of the Code is to be given force, I see no way to allow the executrix these further credits. Its language is so specific that in a case so closely drawn as this the credits cannot be allowed without: holding directly against the words and spirit of the statute requiring the production of vouchers. The statute says, “must produce and hie a voucher for every payment, except,” etc. The following authorities sustain this view: Tickel v. Quinn, 1 Dem. Sur. 425; In re Rowland, 5 Dem. Sur. 216; In re Topping’s Estate (Sup.), 14 N. Y. Supp. 495-598; In re Taft’s Estate (Sup.), 8 N. Y. Supp. 282, 283; Willcox v. Smith, 26 Barb. 316; In re Hertfelder’s Estate, 1 Law Bull. 96. In Re Langlois’ Estate (Surr.), 14 N. Y. Supp. 146, the learned surrogate allowed payments without the production of vouchers, and certainly went to the margin in so doing. He does not, however, as I understand his opinion, take the position that a surrogate may override the express words of the statute, upon his own convictions of justice, where the provisions of the statute as to the requisite evidence have not been complied with. Jf such were his determination, I should dissent from the same. He says: “My own belief is that the admission in the argument by the attorney for the objector, that the account is correct, is a complete waiver of the objection. However, I do not place my -decision on that ground.” In speaking further of the proof, he says: “It may not be a literal compliance with section 2734, but the evidence admitted, and the practical acquiescence of the contestants in the correctness of the items, convinces me that justice demands their allowance.”

I am therefore led to believe that the learned surrogate found in the case competent evidence, other than the oath of the executor or administrator, and in that event, the case is not an authority that such payments can be allowed without vouchers, except hy compliance with the other provisions of the statute, showing an exception therein provided for. If a surrogate can substitute his own sense of justice in place of that of the Legislature, as embodied in the rule prescribed by this section of the Code, and determine that vouchers need not be taken, then the rule is practically annulled. The wisdom of the rule is apparent. It puts upon the trustee the duty of taking vouchers for his payments. He is given a trust fund, and he should take upon him-self the burden of showing that he has disposed of it according to his trust. It is no hardship to require of him that he should take and produce vouchers showing what disposition he has made of - the fund. Payment is regarded, in law, as an affirmative matter. The rule, when applied to this case, shows it to be a just and wise one. This executrix was dealing with a very old lady—one who cannot read or write. She was therefore, in a .great measure, at the whim or purpose of the executrix, as to payments. In case of death, either party would be in the power of the other. The Legislature, no doubt, in the enactment of this section, took full notice of the inequities and injustices that might occur, and formulated this statute, embodying the rule which would best serve the interests of justice; and, this being so, it seems to me that a surrogate has no right to substitute his own rule in place thereof. He should follow it, in its letter and spirit, in the absence of a compliance with the requirements thereof by the accounting party, and disallow such ¡alleged payments. In the case of Rose v. Rose, 6 Dem. Sur. 26, cited by the counsel for the executrix, the learned surrogate held “that the rule was stringent, that beneficiaries may be protected from possible dishonesty of those acting in a fiduciary capacity;” and yet he decided that, where the “contesting party himself calls and examines the executor as to such payments, a different question arises.” It seems to me that this is ingrafting upon the statute another exception to the rule there laid down. I think it fair to presume that the Legislature embodied all of tbe exceptions therein, intended to be available. In fact, ■the section expressly says, “other than his own oath,” and yet the decision of the learned surrogate would make the executor’s “'own oath” sufficient. I do not mean to hold that this statutory right may not be waived by a contestant, but it seems to me that, to constitute a waiver of tire same, something more than questioning the accounting party as to payments is necessary to constitute a waiver of this statutory right. Section 2734 of the Code is a modification of the former statute, relaxing the rule in favor of the representative of an estate under certain circumstances, to prevent injustice being done, and to thus remove a. serious obstacle to the assumption of such trusts. Decisions of the courts, indicating such modification, no doubt led to this-modification. It is reasonable to suppose that the Legislature has, by the exceptions set forth in this section, relaxed the rule-to the required extent to do no injustice to an executor or administrator, until future experience indicates a further modification. This power is not conferred upon surrogates-. There is no proof of the extent, in the aggregate, of payments under $20 each, and, as the payments allowed are far in excess of the $500,. that sum might be allowed where vouchers are not produced, but no further credit can be allowed for such payments. It is quite-probable that the receipt of the widow does not express the exact amount of the payments to her. It is all, however, that she-concedes. It may be that an injustice will be done the executrix, in disallowing further payments, but, if so, it is due to her own carelessness and negligence. She is an intelligent woman, of some business experience and prudence; and ordinary care-indicated to her that, in order to make a proper showing of her disposition of the estate, she should have provided herself with some writings in verification of her payments.

The evidence shows that the executrix has deducted 5 percent., as her commissions, accordingly as she paid over the-moneys. This is not only in excess of her legal commissions, but she had no right to retain the same until judicially allowed. In re Butler, 1 Con. Sur. 58-70, 9 N. Y. Supp. 641, and cases-there cited. The same will be adjusted by the decree. Let a decree be presented for settlemnt and entry; costs to be taxed, and allowed at such time.


text:
      In re Goetschius’ Estate.
    (2 Misc. Rep. 278.)

      (Surrogate’s Court, Rockland County,

      Filed February 13, 1893.)
    1. Executors—Accounting—Beal estate.
    A testator devised and bequeahted to his wife, the use, occupation, income and profit of all his real and personal estate for her life, and directed that two of his sons (also named as his executors) should cut, haul and prepare for burning, firewood sufficient for her use. No duties were charged upon the executors with respect to the application of the income. Held, that the gift of the income of the real estate to the wife created an estate in the realty itself, and that the executors were net bound to account for the income of the real estate, or as to the cutting of wood and timber.
    2. Same—Personal estate.
    In sucli case the executors retained the custody and management of the persona] estate. Held, that if the income was collected by them without power under the will, they were only liable individually, and. the couit had no power to entertain an accounting therefor.
    3. Same—Personal estate—Income.
    The executors invested part of the personal estate and used the remainder for their individual purposes. They paid the widow the income cf the investments, and for legal interest on the moneys expended for their own use they paid her with cash, goods from-their store, and' by paying taxes for her. The evidence of witnesses other than that of the executors was given of payments in money and kind to the widow, who, it was also shown, paid sometimes for goods received- - from the executors. Held, that even if the latter were accountable for the income of the personal estate, the evidence was insufficient to charge them -with any balance of income for which they were liable to pay the widow or her executors.
    4. Same—Liability for principal.
    One of the executors died during the widow’s life. Held, that the survivor was accountable for the principal personal estate, except as to the va’ue of articles of personal property which he placed in charge of the widow for her use, and which were lost by ordinary use and wear.

      5. Same—Surviving executor—Credit.
    The decedent executor had purchased part of the personal estate, for which he did not pay. Held, that as he had an equal right to the custody of the property of the estate, the surviving executor was nob liable for bhe purchase price.
    6. Same—Credit for interest.
    When the executors could, out of moneys in their hands, have paid' off the amount of a note due by testator, within a reasonable time after they entered upon their administration of the estate, they will not be allowed for accruing interest paid on the note.
    7. Same—Costs of accounting.
    An item for legal services on the accounting cannot be properly charged in the account. Such is a matter for adjustment upon the allowance and taxation of costs in the proceeding.
    Judicial settlement of executor’s accounts.
    Snider & Hopper, for executor; Arthur S. Tompkins and D. D. Sully, for contestants.
   Weiant, S.

The testator, Harmon Goetschius, died on or about August 19, 1859, leaving a last will and testament, which was admitted to probate by the Surrogate’s Court of this county on or about Uovember 28, 1859, and letters testamentary thereof were thereupon issued to the executors therein appointed, the accounting party hereto, John H. Goetschius, and one George Goetschius, two sons of the- testator. The executors caused an inventory of the personal estate of the deceased to be made and filed in said surrogate’s office on the 19th day of December, 1859, showing assets amounting to $2,282.10. The two executors entered upon the administration of the estate, and continued therein together until the death of George, in the year 1870, since which time the accounting executor has solely acted in such administration. The widow of the testator, Fanny Goetschius died on or about April 19, 1891, leaving a last will and testament, which was thereafter, on May 25, 1891, proved, and letters testamentary granted to Stephen Van Orden and John R. Wanamaker, as executors thereof. The testator by his will, by request and devise, made the following provision for his widow:

“I give, bequeath and devise to my beloved wife, Fanny, the use and occupation, income and profit of all my real and personal estate, to have and to hold the same for and during her natural life; and I do further order and direct that my sons, John Henry and George, shall cut, haul, and prepare for burning, firewood sufficient for her use; and, further, it is my wish and desire that she remain in the house we now occupy, but if she prefers to take up her residence with any other person or place, she is at liberty to do so; and she is at liberty to surrender her claim, or any part thereof, to my estate to my children, if she thinks proper; and after her death I give, devise, and ben queath my real and personal estate to my children and grandchildren in manner and form follovfing, to wit.”

Here follows a devise of a parcel of land to his daughter Catherine; a devise to his sons, John Henry and George, of the remainder of his real estate in the town of Ramapo; a bequest of the sum of $800 to Catherine Louisa, the daughter of the testator’s deceased son, Stephen, to become due and payable when she shall arrive at the age of 21 years, but if the testator’s wife, Fanny, is living at, that time, then to become due and payable to her one year after the death of his said wife; a bequest of $100 to a grandson, Harmon Goetschius Bogart,, together with certain specific articles of personalty; a bequest to Elizabeth Bogart and Harmon Goetschius, children of the testator’s deceased daughter, Maria, each of $500, to become due as they respectively arrive at the age of 21 years, or, if the testator’s said wife is then living, then to become due one year after her death, and in certain contingencies to the survivor; a legacy of $100 to Henrietta, the widow of testator’s son, Stephen; a devise and bequest of the portion of the estate of George M. Goetschius, deceased, which the testator expected to receive on the distribution of that estate, to his daughter, Catherine, and his two sons, John and George; and a devise and bequest of all the rest, residue and remainder of his estate to his three children, Catherine, John and George, and his grandchildren, Catherine Louisa Goetschius, Elizabeth Bogart and Harmon Goetschius Bogart, to be equally divided between them, share and share alike. It thus appears that the executors, as such, are given no authority or control over the real estate of the testator; and the consideration and investigation of the income or profits arising therefrom, and disbursements on account thereof, may be dismissed from this accounting. Those are matters to be adjusted between the individuals to whom the real estate was devised, respectively, or their legal representatives. The executors, as such, were not clothed "with any duty or authority as to the same. A gift to the testator’s widow of the rents and income of the real estate for life creates an estate in the realty itself, and, if no duties, are charged upon the executors with respect to their application, no estate or trust is created in them in respect thereto. Macy v. Sawyer, 66 How. Pr. 381; In re Blauvelt, 131 N. Y. 249, 30 N. E. Rep. 194; In re Blow (Surr.), 11 N. Y. Supp. 193. As to the cutting of wood and timber from the lands devised by the testator, it also follows that this court has no jurisdiction to hear or determine the same. That is an individual matter between the devisees and the executors in their individual capacity. As to the personal estate, no duty seems to have been devolved upon the executors until after the death of the widow, and then only to make distribution of the same in accordance with the directions of the will, after payment of debts and burial expenses, which must necessarily have precedence. During the widow’s lifetime, the “use and occupation” of all of the estate, real and personal, are given directly to the widow. Ho direction is given to the executors in reference to the same. They are not clothed with any express trust to receive and apply the income thereof, for the same is given directly to the widow. It seems, however, that title to, and rieht of custodv of. the personalty, where the contrary is not expressly provided, is primarily'in the executors, for the purpose of keeping and protecting the same for final disposition in accordance with law and the directions of the will. There is a species of trust attached -to every executorial office, and as was said by the chancellor in Bowers v. Smith, 10 Paige, 199, “the executor always takes the legal title to the personal estate of the testator as a trustee.” .In re Shipman’s Estate (Sup.), 6 N. Y. Supp. 276. “But there is a wide difference between the trust which is attached to the -executorial office and an active trust founded upon the creation ■of a trust estate. Here there is no trust estate, no active trust, ¡and no testamentary trustee. The duty of the executor, as .such, continues until the falling in of the life estate. This is the settled rule as laid down in a long line of cases.” Id., and cases there cited. “When a life estate is bequeathed in a sum of money with remainder over, the legatee is entitled only to the income, and the principal, subject to the life estate, belongs to the remainder-man ; and, unless otherwise directed "by the will, it is the duty of the executor either to invest the money, and pay the interest to the first legatee during life, and preserve the principal for the remainder-man, or, on paying it over to the legatee, to require security from him for the protection of the remainder-man in respect to the principal.” Smith v. Van Ostrand, 64 N. Y. 278-282. “In such a case there is mo other trust than the law created and vests in the executors. They take the legal title to all personal property. They must convert it into money, pay debts, expenses, and specific legacies, if any; and, as they are bound to execute all the provision of the will, they are charged with a duty, as it were, to A. and B. 'They must give to A. what belongs to him, and then to B. what Ibelongs to him.” Livingston v. Murray, 68 N. Y. 485-492.

The executors here having retained the custody and management of the personal estate,' the executors of the will of the ■widow claim that they are accountable for the same, as executors, for both principal and income. I am not fully convinced that such contention is well founded. If the income was collected by them without power under the will, then they become liable individually, and this court would have no jurisdiction to entertain an accounting therefor. In re Cooley, 6 Dem. Bur. 77, and cases there cited; In re Blow (Surr.) 11 N. Y. Supp. 193. But if it be assumed that the executors, as such^ are here accountable for the income, upon the whole ease it does not appear that they have been shown to have any balance thereof in their hands. The testimony discloses that the personal estate has been in part invested and in part used and applied to the individual purposes of the executors. They are chargeable with such interest as the evidence—which is without conflict—discloses that the investments earned, as well as for all profits realized on the sale or exchange of the securities, for they cannot make any individual gain from the trust funds. In re Bntler (Surr.) 9 N. Y. Supp. 641. For such portion of the funds as they used for and applied to their individual benefit, they must be charged with the legal rate of interest then prevailing. It is not a case for charging compound interest, under the circumstances. In re Kennedy (Surr.), 9 N. Y. Supp. 552. This income, however, was payable to and belonged to the widow. The accounting executor claims that all of it was. paid to her in her lifetime, as the same was collected, either in cash, coupons, payments in her behalf, or by goods which she received from his store. But three receipts, however, are produced which show payments of interest collected. These were given in 1864 and 1865, and are for interest accrued on savings bank deposits and a bond and mortgage. The surviving executor testified to his having paid the widow all income received by them, and, for the interest lawfully due the widow from the executors for the funds applied to their personal use, that they paid her with cash, goods from their store, and by paying taxes for her at her instance, which she, as life tenant, Avas bound to pay, and produced receipts showing such payments. The executor is somewhat corroborated by other witnesses, Avho knew of payments made to the widow, and who-knew of her obtaining goods from the executors store. Sometimes the widow paid for goods she received, which lends an inference that the executors had paid her all accrued interest, for she avouM most probably not hax e paid for any goods if the executors were indebted to her for income to which she was.

entitled. The executors do not seem, at least for many years,, to have kept any accounts of their transactions with the widow, and the evidence is so general and indefinite that no satisfactory conclusion can be reached. It appears, however, even assuming-that the executors, as such, are accountable for the income of the personal estate, that the evidence is insufficient to charge tire executors with any balance of income for which they were liable-to pay to the widow, or now to her executors. Again, it may be that all liabilities for such income, collected more than six years prior to the widow’s death, are barred by the statute of limitations. Foster v. Town, 2 Dem. Sur. 333; In re Nicholls (Surr.) 8 N. Y. Supp. 7; Mills v. Mills, 115 N. Y. 80, 21 N. E. Rep. 714; Brooks v. Brooks, 4 Redf. Sur. 313; In re Dunham (Surr.), 6 N. Y. Supp. 563; In re Clayton (Surr.), 5 N. Y. Supp. 266; Roberts v. Ely, 113 N. Y. 128, 20 N. E. Rep. 606..

As to the principal personal estate, the surviving executor is accountable for the same. In his inventory he charges himself with $2,280.10 of assets. As against this, he is entitled to credit for the $8.75 of accrued interest paid the widow; also,, the value of the articles of personal property which he placed in the charge of the widow for her use, to which she was entitled under the will, as the same appears to have been lost by ordinary use and wear by her, except the horse, bought by the executor George Goetschius for $45, and for which he never paid. As that executor had an equal right to the custody of the funds and properties of the estate, I do not think, under the authorities, that the accounting executor is liable for that item.. In re Demarest (Surr.), 9 N. Y. Supp. 292. As to the credit in Schedule O, for the payment of $150 for interest upon the $100 note of the testator, held by George J. Snider, I do not consider that the same is allowable The executors had moneys-in their hands out of which the note should have been paid and discharged within a reasonable time after they entered upon their administration of the estate, and they could not legally fail so to do, and charge the estate with the ac-ruing interest for the long period of time that has since elapsed. In re Babcock, id. 554. 1 The item of $15, credited in the same schedule for legal services on this accounting, is not properly there. That is a matter for adjustment upon the allowance and taxation of costs in this proceeding. Eor the balance of the principal of the estate, the accounting executor is -chargeable with such interest or income as may have been earned ■or accrued thereon, where invested, since April 19, 1891, the date of the death of the widow; and as to the remainder, which •seems to have been appropriated to their own use by the executors, the accounting executor must be charged with legal interest from the same date. The increase or decrease which resulted on the sale or exchange of securities is chargeable to the principal estate. In re Lawrence (Surr.), 7 N. Y. Supp. 332. The ■credit, of $500 in Schedule B, being one-half of the $1,000 which the executors used in their business, cannot be allowed. That was money of the estate which went into their partnership business, and, so far as this estate is concerned, both became liable for the full sum appropriated, as the money was so used with the assent of both.

The inventory is not before me, and it may be that the amounts and values herein stated are incorrect, and therefore, upon the settlement of the decree, the same may be therein corrected. I have simply indicated the rules in conformity to which the accounts must- be adjusted and settled by the decree. "The amount for which the accounting executor thus appears to "be liable must be decreed to be applied by him, first, in payment ■of the costs and expenses of this accounting; then the burial -expenses, if any, unpaid; next, in discharge of the debts of the testator; and the remainder to the legatees, agreeably to the provisions of the testator’s will.