259 A.D. 757 | N.Y. App. Div. | 1940
Appeal from a decree of the Surrogate’s Court and decision of the surrogate of Schuyler county in a discovery proceeding instituted by the respondent as executrix of the will of Jay M. Crofut, deceased. It is alleged that the appellant, as executrix of the Rhoda Smith estate, wrongfully entered the house belonging to the estate of Jay M. Crofut and removed certain articles of furniture. Appellant contends that the furniture in question actually belonged to Rhoda Smith. For approximately ten years prior to Jay M. Crofut’s death, Rhoda Smith had lived in Ms house as caretaker. Appellant contends that Rhoda Smith took the furmture in question to Crofut’s house when she moved in. She died three weeks after Crofut, and tMs dispute between the two executrices followed. The surrogate, after hearing the evidence, made findings in favor of the respondent and awarded the property involved to her as representative of the estate, on the theory that it had actually belonged to Jay M. Crofut at the time of Ms death. Six witnesses testified on behalf of the respondent and their testimony was sufficient to support the decision of the surrogate. There is notMng in the record to indicate that the decision was against the weight of evidence in any respect. The argument as to wMch party should bear the onus of proof is academic and need not be decided in view of the fact that the respondent herein actually has sustained her position by a preponderance of evidence upon the record. The decree and decision of the surrogate of Schuyler county should be affirmed. Decree and decision of the Schuyler county surrogate unanimously affirmed, with costs and disbursements. Present •— Hill, P. J., .Crapser, Heffernan, Schenck and Foster, JJ.
