3 Redf. 465 | N.Y. Sur. Ct. | 1877
As a general rule, clerk hire is not allowable. Precisely what is intended to be understood by “writing up the accounts,” I am unable to say. If the term is intended to apply to the preparation of the account which was filed, it cannot be allowed, as that was a duty devolving upon the administratrix formerly, and now, under the Act of 1863, may be covered by an allowance to be made by the court. If the clerk was paid for keeping the account, it must still be disallowed, as I see no special necessity for it in this case.
The credits for moneys paid by the administratrix,
Again, it was objected that the administratrix had not accounted for all of the assets, in that she had omitted to charge herself with certain government bonds. The burthen is on the contestant to establish the fact of the omission, and it must be proved with reasonable certainty and definiteness, Marre v. Ginochio, (2 Bradf. 165). The contestant called the administratrix as a witness to prove that there were
The bonds were kept in a tin box, which was in the custody of their mother, and of which she kept the key. The decedent had thus parted with the dominion over them, as much as he had done with the bonds belonging to his wife and those of the servant, for whom he had also bought bonds and which were kept in the same box. True, he had bonds of his own there, but they were simply in the safe keeping of his wife. He collected the money for the coupons, handing the same to his wife, the girls and the servant respectively, and doubtless retaining his own. The circumstances attending the giving of the bonds to the daughters do not appear,. nor any other facts bearing upon the question than those recited. Thus he “gave” them the bonds; they came into the custody of the mother, and he took the coupons, obtained the money and handed it to théT daughters. As often, therefore, as he received and handed to them the money, he declared and affirmed the gift. The case of Grangiac v. Arden, (10 Johns., 293), to which I am referred as an authority by both sides, I think sustains this view.
As to the ponies and carriages, I am inclined to regard the gift as a valid one. The rights of creditors are in no way affected, and as between the next of kin
The counsel for the administratrix insists that this court has no power to determine as to the validity of the alleged gifts. In this I think he is in error. The persons claiming to be donees are parties before me as next-of-kin. It is provided by Sec. 71 of 2 Rev. Stat., 95, that on the accounting the Surrogate shall make a decree, distributing the surplus remaining, “ to and among the creditors, legatees, widow and next-of-kin to the deceased, according to their respective rights; and in such decree, he shall settle and determine all questions concerning any debt, claim, legacy, bequest or distributive share, to whom the same shall be payable, and the sum to be paid to each person.” Does not this become a “ question
There remains one other question to consider; and that is, whether the administratrix shall be allowed the credits for the $6,000 and the $4,063 claimed to have been paid by her to the contestant on account of her distributive share. The first of these sums, it is claimed, was paid by a check for that amount, dated Feb. 2, 1872, drawn on George Opdyke & Company, by W. S. Opdyke, and payable to the order of Margaret Fowler, the contestant. This check was thus endorsed in the handwriting of John Fowler, Jr., Margaret Fowler, Deposit in National Bank of Commonwealth to credit of John Fowler, Jr.;” and the latter, by a check for the amount, dated May 15, 1872, drawn on the Bank of New York National Banking Association, by Sophia B. Lockwood, the administratrix, and payable to the order of said Margaret Fowler, and was endorsed by John Fowler, Jr. in precisely the same way. These checks were offered in evidence as vouchers to prove the payments, and it was held they were not sufficient, alone, for that purpose. Proof was then introduced with a view of showing that John Fowler, Jr. acted as agent for his wife, in the transac
Here, had the administratrix been informed promptly that Mrs. Fowler repudiated the authority and acts of Mr. Fowler, she might for aught we know, have recovered the money back from him, or from the banks which cashed the checks. The like doctrine is
But, the counsel for the contestant contends that it has not been shown that the husband had authority to endorse his wife’s checks, and that when she failed to object to these items, on obtaining full knowledge of them, she was uninformed as to all of the facts relating to the manner in which these payments were made. I fail to see any force in these objections. It strikes me it was utterly immaterial as to whether the endorsement of the checks was within the scope of his agency, or whether she did or did not know how he had endorsed them. It was only material that she should know the payments had been made, not how they were made, to him.
There was contradictory evidence as to whether the contestant at the time of her interview with Mr. Opdyke in regard to the statement refused or not to give a receipt for these payments. It seems to have been desired by Mr. Opdyke to obtain what has been called a consolidated refunding receipt, embracing all the payments. He testifies he informed her he had given, or sent to her husband such a receipt for her to execute and return to him, and that she did not object to doing so. She says she declined to execute it. No such prepared receipt was then presented to her. In any event, I think it of no moment, as her declining to execute such receipt could not fairly be construed into an objection to the payments, and especially in view of the fact that she never objected to them until this proceeding was instituted.
A decree accordingly, without costs to either party as against the other.