57 N.Y.S. 1128 | N.Y. App. Div. | 1899
Abigail Journeay, the mother, and Edward Sprague, the brother-in-law, were duly appointed administrators of the estate of David H. Journeay, deceased. Before the application for final accounting, Abigail Journeay died, and the petition for the accounting was by the surviving administrator, Sprague. The record presently before us does not contain the vouchers which the administrator produced upon the accounting. It is not claimed by the appellant, however, but that such vouchers, representing payment of costs and expenses, were produced and submitted to the surrogate upon the final accounting, or but that they covered all of the items of expense for which the administrator asked to receive credit. The burden was therefore cast upon the contestant to show that the items paid by the administrator and represented by the vouchers were not a just debt or claim against the estate. Boughton v. Flint, 74 N. Y. 476, 485; In re Frazer, 92 N. Y. 239, 247. The acting surrogate before whom the accounting proceedings were had has found that the items of debts and expenses which were charged against the estate were properly paid by the administrator, and he has allowed the same as proper payments to the full amount.. It is quite clear that the evidence produced before the acting surrogate supports the conclusion which he reached. It is not necessary that we discuss in detail the evidence in favor of the several amounts which the decree supports. The main contention on the part of the appellant relates to an item of §5,000, represented by a promissory note given by the deceased, David H. Journeay, to his mother, Abigail Journeay, prior to his death. The history of this note, and the proceedings taken in connection with it, are quite familiar to this court, and the several claims which are made by the appellant have been the subject of review by the court to a greater or less extent. Sprague v. Sprague, 80 Hun, 285, 30 N. Y, Supp. 162; In re Engelbrecht, 15 App. Div. 541, 44 N. Y. Supp. 551. Several grounds are now advanced by the appellant why the administrator should not be allowed for the amount of this note. In substance, they are that David H. Journeay was of unsound mind at the time that he executed and delivered the note; that there was no consideration for the same; that the evidence in support of the note given by Abigail Journeay was contradictory, unreliable, and clearly established that there was no " consideration whatever for the note; that the attorney for the administrators, and the administrators themselves, formed a conspiracy to have the said note made a charge against the estate of David H. Journeay. We have carefully examined the record in the present case, and reached the conclusion that no ground exists for making the very serious charge against the attorney and the
It follows that the decree of the surrogate should be affirmed. All concur.