55 N.Y.S. 168 | N.Y. App. Div. | 1898
The respondent, Eliza Davis, having recovered a judgment against the appellant, as executrix of Hermann Koehler, filed a petition in the surrogate’s court for leave to issue execution on her judgment against the executrix, and upon that application she was ordered to file an intermediate account. Pursuant to such order, an intermediate account was filed, to which the respondent filed objections. Subsequently a proceeding for a voluntary accounting by the executrix was commenced, when the two proceedings were consolidated, and the surrogate referred the accounting to a referee. The referee reported that, in addition to the sum with which the executrix charged herself in her account, she should be charged with the sum of $17,542.32, which had been deposited in the Bank of the Metropolis to the credit of the executrix, and also with $3,056.09, a sum on deposit in the Bank of the Metropolis to the credit of the decedent in April, and deposits subsequently credited to that account, amounting to the sum of $1,230,—a total of $4,286.09; and that she should
Three different days are mentioned in the record as the date of the testator’s death. It does not appear that there was any evidence that the testator died on April 9,1889. "When a witness named Hamilton was being examined, the question was asked, ‘When did Mr. Koehler die?” and counsel for the executrix said that he died on April 9, 1889. Mr. Rogers, connected with the Bank of the Metropolis, in speaking of the testator’s account in the Bank of the Metropolis, testified that at the time of his death, on April 10, 1889, it was $3,056.09. Mr. Koehler, the brother of the testator, testified that the testator died on April 14th. It was stated on the argument by the counsel for the executrix that the real date of the death of the testator was April 14, 1889, and it would seem that this was the only date testified to. The learned referee charged the executrix with the amount of money on deposit in these two banks on April 9, 1889.
There were several claims against the estate which were paid by the executrix, and which the learned referee disallowed, because, as he reports, the propriety of these payments was not proved. We think these amounts should have been allowed as payments by the executrix of claims against the estate. These claims were presented by persons claiming to be creditors of the testator. The evidence in each case was that the person presenting the claims had performed services for the estate; that the executrix caused these claims to be examined, and, having been satisfied of their correctness, paid them. We think there was sufficient to make out a prima facie case for allowing the executrix the amount of such claims. There is no doubt but that the claims were actually made against the testator’s estate, and that they were paid by the executrix as valid subsisting claims against the estate; and upon such an accounting we do not understand that an executrix is bound to prove anything more than that. She is not bound to establish on her accounting by evidence that would sustain a verdict against her if she had disputed the claim that the claims were payable by the testator. There was a large amount of evidence taken on this accounting. Much of it was incompetent, but it was not objected to, and the proceedings seem to have been quite informal. The difficulties which have arisen have been because of the manner in which the counsel tried the case, and this is another illustration of the necessity, in proceedings of this kind, that the rules of evidence should be strictly adhered to, and the case formally and properly tried.
The decree of the surrogate must be reversed, and the case sent back to the surrogate’s court, with directions to order a new hearing upon the objections to the account presented; with costs to the appellant to abide the event All concur.