132 A.D. 614 | N.Y. App. Div. | 1909
Lead Opinion
At the death of Ann McDonough, October 20, 1904, she and her sisters Elizabeth McDonough, Catherine McDonough, and her niece Ann E. Morton, the appellant, were residing together as one family, Ann apparently being: the head of the family. They were all old ladies, the niece being about sixty-nine years old". The house was the property of Ann individually or of her and the others. The furniture and personal property were formerly the property of the' mother of the appellant Morton. There was on deposit in the name of Ann in savings banks $1,^01.83. After the death of Ann the remaining sisters and the niece continued to form the family until July 19,1905, when Elizabeth died, and thereafter Catherine and her niece constituted the family, and they believed that - they alone were entitled to the estate of Ann and Elizabeth, being unaware of the existence of the respondent Rebecca McDonough, a half sister. Catherine, with funds belonging to her or to her and the appellant Morton, paid the doctor’s bill, and funeral expenses of Ann, amounting to $350. Letters of administration were issued to Catherine upon the estate of Ann in August, 1905, and shortly thereafter Ann’s accounts in the savings banks were closed, the money being transferred to the individual credit of-Catherine. This was done with the knowledge
The funeral expenses and the attorney’s bill were not primary debts -against the estate of Ann but were obligations existing against Catherine personally, but she could reimburse herself from the estate' after the items- were approved by the surrogate. . Catherine could not have been compelled to distribute oi* pay over the funds of the estate without an allowance to. her for so ranch of those items as met the approval of the surrogate, and her executrix occupies the same position. Those items "and the doctor’s bill have been approved by the surrogate, and there is no reason why they should not be .credited to Catherine’s executrix upon this accounting^ The payment by -the appellant Morton -of some of those items after the death of Catherine was not an act of administration upon the estate of Ann, but was a payment by .her of the debts of her testar tatrix, which payments, when approved by the surrogate^ she is entitled to deduct from the moneys due by .Catherine to "the estate of Ann. It is immaterial whether Catherine took the money from Ann’s bank account or from her own pocket with which she paid the doctor’s bill and funeral- expenses. "They were disbursements upon account of estate and must be allowed her. Catherine an<I" the appellant Morton.continued to reside 'as a- family in substantially the same manner as during the lifetime of Ann and Elizabeth. • They acted together, and the taking of the moneys from the bank.and .putting the same in the private account of Catherine while it could legally be done only by Catherine, was, in effect, the act "of both and was, in substance, an appropriation of the funds for the benefit of the family as it then existed, and in effect may be treated ás a family
It does not appear -whether Elizabeth left a will or not, or whether she left debts or not, and, therefore, the share coming to her from Ann’s estate cannot be, treated as administered.
The decree, therefore, should be modified as follows:
(1) The above items should be credited to the executrix.
(2) Catherine and the appellant Morton should be treated as having received their one-quarter share of Ann’s estate.
(3) The one-quarter share of Ann’s estate belonging to Rebecca and the one-quarter share belonging, to the estate of. Elizabeth should be paid to the administratrix of Ann to be disposed of according to law.
(4) The appellant Morton upon this accounting should be allowed full commissions on all moneys received and paid out, including the shares of herself and Catherine, and half commissions upon the sums she pays over to the administratrix of Ann.
Smith, P. J., and Sewell, J., concurred ; Chester, J.,' dissented in opinion in which Cochrane, J., concurred. .
Dissenting Opinion
It appears that the existence of the half sister, Rebecca, was not known to the other next of kin of Ann-—her sisters Catherine and Elizabeth and her niece, the appellant, while these three were living together as one family, and the claim of the appellant appears to bo that Ann’s estate has been by mutual consent properly administered and settled out of court so .far as these three are concerned, and that the payment of the expenses and the retention by the appellant of so much of the fund as she may be entitled to as next of kin of her deceased annts should be approved by the surrogate as proper administration of the estate upon her making Rebecca, the respondent, good for the amount she is entitled to as one of the next of kin of Ann, including any share she may be. entitled to .in the estate of Elizabeth, who.died subsequent to-the, death of Ann.
It does not appear whether Elizabeth died testate, or intestate except by a statement in the account that she died intestate, nor does it appear whether .she left debts or funeral expenses with which her estate is chargeable; There is no proof that any part of the estate of Ann ever came to her hands, but it is clear that her estate is entitled to share in it.
Under such circumstances the surrogate was right in not .approving any distribution of the estate or any understanding as to how it should be divided as acts of administration. ■ ■
This accounting is one had under section 2606 of the Code of Civil Procedure. That section gives the surrogate jurisdiction upon the death of an administrator to require his executor or administrator to account for and deliver over the trust estate precisely as if the letters of the deceased administrator had been revoked in his lifetime and he had been called upon to deliver up the assets. - His representative stands in his place for the purpose of such accounting and delivery. (Matter of Clark, 119 N. Y. 427.)
1 think it is unimportant, so. far as this appeal is concerned, that Catherine made the payments of the undertaker’s and physician’s bills for the benefit of Ann’s estate out of her individual estate, rather than out of the savings bank account which Catherine caused to be transferred to herself individually after Ann’s death. The payments were made in good faith for'the benefit of her sister’s estate and her executrix on this accounting is entitled to credit for them. While there are some statements in the findings to the effect that the whole estate should be turned over by the appellant to the respondent, who should in turn pay back to the appellant the amount of the undertaker’s and doctor’s bills, yet the decree as made. correctly permits the appellant to pay over the estaté less the amount of these bills and is, therefore, correct.
The surrogate was also correct in holding that the appellant had no right to continue the administration of the estate of Ann after the death of Catherine, and, therefore, that she was not entitled to credit on this accounting for the moneys she had paid out for legal services for the benefit of the estate of Ann, for the transfer tax assessed against her interest in. the estate and for legal services in preparing her account. This cannot be a matter of much moment to the appellant, for the surrogate has taken evidence concerning these matters and in the decree appealed from has directed that she should be reimbursed for these moneys paid for the benefit of the estate to the extent of $150, and that when her share in the estate is ascertained nothing should be deducted therefrom for
I think the decree should be modified by allowing to the appellant, as executrix, commissions for receiving the estate, and as so modified affirmed, without costs to either party.
Cochrane, J., concurred.
Decree modified as per opinion, and as so modified affirmed.