1 Pow. Surr. 292 | N.Y. Sur. Ct. | 1892
The testator’s will was admitted to probate about the year 1881. Charles D. Archer and Allison M. Archer, the contestant, were appointed executors thereof, and authorized to then qualify. George A. Archer was naméd also as an executor, but not to qualify until he arrived at 21 years -of age. Charles and Allison qualified at once, and entered upon their duties. George qualified in about the year 1883, on his arrival at 21 years of age. In a proceeding commenced in January, 1888, Allison was enjoined from acting further as executor, and removed as such later in said year by a decree in such proceeding. Since the commencement of that proceeding the accounting executors have continued to act in the adminis^ .tration of the estate. This proceeding is to settle and adjust their accounts.
In the consideration of the questions submitted to me for my determination I shall follow the order in which the same are presented by the counsel for the contestant, Allison M. Archer, who alone interposes objections. His first claim is that the ' accounting executors should be charged for the half earnings of a barge known as the M. A. Archer for a portion of the year 1885 and the whole of the year 1880. This was a vessel constructed in the year 1883 for the freighting, of bricks from an estate brickyard. The arrangement under which this vessel was to be constructed and paid for seems to have been made
As to the balance of the earnings of the barge for the year 1888, of $420.37, the executors concede that the same is correct, and that they should be charged therewith. The counsel for
“Should my sons Charles and George and my said wife desire to continue to reside in my dwelling house where I now reside, then my will is that they may occupy my said dwelling house, and the lot and barn used therewith, and the furniture and' property in the house and barn, so long as they desire so to •do, without, paying rent therefor during the lifetime of my said wife, each paying one-third of the actual living expenses ■of the household.” “Should my son Allison desire to reside where he now does, my will is that he may do so without paying any rent during the lifetime of my said wife.” “Should my three sons and my wife desire my son Allison and his family to reside with them where I now reside, then my will is that he may do so, so long as they desire.” “The provisions herein made for my said wife are in. lieu of her right of dower in my property.”
Thus it appears that the estate is devised in trust to the executors, including the homestead dwelling, lot, and barn, and in them was lodged the legal title, with the duty of maintaining •and protecting the same during the continuance of the trust, •during the widow’s lifetime (Stevenson v. Lesley, 70 N. Y. 512; Crooke v. County of Kings, 97 N. Y. 421) ; and it was their
The item of $90.50, as paid to Jones & Furman, is not properly a credit, as the testimony stands. It was for coal sold to •that firm, and for which they owe the estate. To entitle the
The item of $15.70 to C. 0. Cooper for hay is not established. Allison Archer testifies that the hay was for the private or individual purposes at the homestead, and Charles has no recollection about it. I find no voucher, and the burden is upon the executors to establish the credit. To establish such an expenditure, the same must, where there is no voucher, “be supported” by the “uncontradicted oath of the accounting party, stating positively the fact of payment,” etc. Code Civil Pro. section 2734.
Objection is made to the credit of the sum of $361.26, which forms a part of the item of $638.92, in a charge against the contestant in schedule Tí, under date of May, 1885. As to this credit, Charles Archer, in his testimony, says that this charge of $638.92 against the contestant is made up of two items— $277.66 and $361.26—as shown bv the personal account book at the top of pages 100 and 101. This book contains the following entry at the top of page 100: “Dif. in wood account, 1883 & 84 overdrawn” $361.26. On page 101: “Dif. in brick and wood acc’t, $277.66.” The contestant testifies that this $361.26 was for money he loaned “them” (meaning the other executors), and that they paid him back; and he says they never charged that to him until he was set aside as executor. He said this latter statement could be proved by a Mr. Markham, but that was not done. George Archer was asked to explain this item, and, as I understand his testimony, this balance of $361.26 arose out of wood and brick transactions between the contestant and the estate, upon an adjustment of which there remained a balance due from him to the estate, and which was
The contestant claims that either the item of $175 of “Schedule I, No. 8,” “September 29, 1881, schooner G. Harrington (cargo of wood),” or “$176, September 30th, Oapt. schooner General Harrington, balance on cargo wood,” should be disallowed, on the ground that the items relate to one transaction, and that but one payment was made. Charles Archer testifies that in a former proceeding the contestant testified that he made payments for two loads of wood at the same time, and to the same person; that these payments were actually made; that Oapt. Ward was the captain of the General Harrington, and that he was also financial agent for the Lawrence. Charles further testifies that these two payments were actually made to that captain; that both boats came along at the same time; and that they were settled for at the same time. It will be observed that these entries were made in the books in 1881; that the contestant was then, and for several years thereafter, an executor, and actively participating in the administration of the estate, and that no objection was ever made to the same, although settlements or examinations of the accounts were had. Under the circumstances, I am of the judgment that these credits should
I do not think that the objections should prevail as to the payments to the Brick Manufacturers’ Association. These payments seem to have been made through or by reason of some arrangement of the brick manufacturers for their benefit and the trade. I am not prepared to say that the payments were not legitimate, under the circumstances.
An objection is made to the allowance of the payment of the-item of $250 to Calvin Frost, as counsel fee, for services rendered and advice given the executors. The only entry as to-the same' appearing in the accounts filed is, “Calvin Frost, attorney, $250.” Rothing there appears as to the services of counsel for which the payment is claimed to have been made. The only testimony as to this item appears to have been given by the executor Charles D.- Archer. He identifies a receipt for the payment of this sum to Mr. Frost, and says that payment was for an opinion; that subsequently a proceeding was brought against his brother, who is this contestant, to remove him as executor, and that Mr. Frost was consulted all the way through that proceeding. This is, in substance, all of his testimony as to what the payment was for. The opinion is not before me. I do not consider the proof sufficient to call for the allowance-of this item. So far as that proceeding is to be considered, the executors were fully represented by other able and competent-counsel, who was fully paid, and the executors are credited and allowed for all such expenditures. To entitle them to incur an expense chargeable to the estate for further counsel, some-proof should have been adduced showing the circumstances-which made that, necessary for the proper administration and protection of the estate. Rothing of that kind appears. The-burden of' proof was upon the executors to establish this charge. The more fact of payment by an executor or administrator of a sum of money is not sufficient to cast the burden of impeaching its justice upon the objector. Estate of Nocken, 15 N. Y,
The testator, as we have stated above,'made this provision in his will: “Should my son Allison desire to reside where he now does, my will is that he may do so without paying any rent, during the lifetime of my said wife.” This son, the contestant, then resided in a dwelling which constituted a part of the estate of the testator. He continued to reside there until April 1, 1882. He then removed therefrom; from what appears, voluntarily. There is no proof that he has ever been excluded from the occupancy of this dwelling, and yet he contends on this accounting that he should receive the rentals from the executors which they have collected from tenants who have since his removal occupied the same. This claim is without foundation. The executors were entitled to receive all income from the estate; and when the contestant abandoned these premises he surrendered all control over the dwelling apartments, and it devolved upon the executors to assume possession and control of the same, and to obtain an income therefrom as a part of the estate.
We come now to the consideration of the remaining matter submitted by the contestant’s counsel. About February 1, 1887, the one-half interest of T. W. Johnson in the above-mentioned barge M. A. Archer—the estate owning the other half—was purchased of Johnson for the consideration of $2,300, and the bill •of sale thereof taken in the individual name of the executor, George Archer. The contestant claims that this purchase was •one for the estate, and that the property thereby acquired, and ■earnings thereof, should be accounted for as estate property and assets. George Archer claims that the purchase was an individual transaction, and that the estate has no interest therein, and that he is not accountable therefor as an executor. From •a careful review and consideration of all the circumstances connected with the purchase of this half interest in this barge, and the relations of the parties, I have reached the conclusion that this purchase must be held to have been one in the interest ■of the estate, and which must be treated and considered as such •on this accounting. This barge was first acquired in the belief that it would be a profitable investment as a part of the estate business. The earnings of the same for the years preceding the year 1887 had demonstrated that it was such from the profits realized therefrom. The earnings showed a large return to the owners of the vessel on the capital invested. The freighting was a usual and ordinary part of the brick manufacturing business, and a remunerative part thereof. In view of these facts, all of which were known to the executors, George Archer and Charles D. Archer, I do not believe that they, or either of them, should in equity be permitted to acquire this interest in the barge, as they have attempted to do, and shut out their
If Charles is a" party to be benefited by this transaction, why' not Allison? There is nothing really prejudicial to the contestant’s claim in the fact that the bill of sale was taken in George’s name. The accounts and other evidence show that with the approval of all parties other valuable properties, purchased in behalf of the estate, were taken in the name of George alone, and yet conceded to be a part of the estate, in the benefits from which all are to participate. Then why not, also, in this barge and its earnings ? George does not claim to have put but $50 in the barge. Why should he absorb this profitable branch of the estate business to the exclusion of the others, made equal under the will of his father. The first half of the barge acquired hv the estate was paid for by its earnings in two or three years. George knew this, and he ought not to be permitted to
My conclusion is that this purchase of the Johnson half of the barge must be decreed to be one in behalf of the estate, and the purchase price paid, and the earnings of such half accounted for, as an estate transaction. In the adjustment thereof George Archer may be reimbursed for the cash he may have paid individually, and I will allow on such adjustment the $186.50 paid by Charles and George Archer to Denton Eowler as the debt of Allison to Johnson evidenced by the $175 note. It seems to me that this note was paid in connection with the purchase of Johnson’s interest in the barge. It appears to have been a payment made without Allison’s authority, as half of the amount paid was at the time charged on the hooks to each Charles and George individually, and they took an assignment of the note and debt from Eowler upon making such payment, which shows a purchase of the note as a debt to be thereafter collected by them. Allison should allow this payment, however, in the adjustment of the barge transactions on the settlement of the decree herein in the adjustment of the equities. Ret a decree be presented accordingly for settlement and entry; costs to each party to he paid out of the estate.