59 N.Y.S. 121 | N.Y. App. Div. | 1899
' The main question in this case relates to that part of the decree appealed from which charges the administratrix with the sum of -$1,099.78, as being the amount of a note against J. Wilbur Gould, and interest to the date of the decree. It is found that the note was owned and held by the deceased at the time of her death.
The note had been left by the deceased some time before her death in the custody of Paul Wilbiur, a relative,, hut -not one of her next of bin. The maher of the note was also a relative, but not one of the next of bin. The decedent died on the 13th of May, 1896, and letters of administration were issued to the appellant on June 19, 1896. She made an inventory which is dated and verified September 14, 1896, but was not filed till February 7, 1898, which was after the commencement of the proceedings for an accounting. The amount of property as stated in the inventory is $383.42. It does not contain the note above referred to, and the note Was not then and never has been in the possession of the administratrix. The parties contesting the account called as a witness Paul Wilbur. He testified as to a transaction between him and the maher of the note
We are not satisfied with the conclusion of the Surrogate’s Court as to the amount due upon the note, or as to the liability of the appellant therefor. It may be that the appellant should have been directed to prosecute (Matter of Underhill, 117 N. Y. 471), but that we need not now consider. A new trial should be granted when there may be a more satisfactory investigation of the matter.
All concurred.
Decree reversed upon the facts and a new trial granted, costs to abide the event. -