96 N.Y.S. 40 | N.Y. App. Div. | 1905
We are asked by the contestant to reverse the decree from which this appeal is taken because of several alleged errors in the decision of the surrogate both of law and .of fact. After a careful examination of the record before us, I am of the opinion that the objection taken in the first point of the appellant’s brief is well taken.
On a final judicial settlement of their accounts as executors under the will of James Knibbs, deceased, these executors had credited themselves with $251, being the amount of principal and interest paid by them to one of their number, viz., Emma L. Knibbs, the widow of the deceased, upon a certain promissory note dated May 8, 1896, and executed by the testator to the order of Emma L. Knibbs, payable twelve months after date, and of which note the said widow claimed to be the owner at the time of the deceased’s death. The appellant filed an objection to the allowance of such payment as a credit to the executors, upon the ground that it did not appear to be a valid claim against the deceased’s estate. "Upon the hearing the surrogate overruled the objection, and held that such note was shown to be a valid and outstanding note against the deceased in the hands of his widow, and held that the amount thereof was well paid to her and credited in the executors’ account.
On the hearing the said widow was sworn in her own behalf,
There was no evidence concerning the delivery of this note, as to how it left' the possession of the deceased,1 or came into the possession of the executors, save that one statement of the ’widow and the further testimony of her coexecutor Maxwell, that ■ the note was paid because he knew the signature of the deceased and all the circumstances attending it, and had been told them by the deceased in his lifetime. This evidence was taken under objection and exception, and so far as it discloses any fact at' all, tit is manifestly objectionable under the said section 829. The witness was allowed to testify, in his own behalf, against the estate, to a conversation had with the deceased during his lifetime.
These rulings were errors, and thd evidence-thus adduced was not sufficient to sustain the widow’s claim that she held the note as a valid claim against the estate, and in this respect the decree must, be reversed. "
Another of the items of credit allowed by the surrogate to such executors was the sum of $230.47'paid by them to the said widow for moneys loaned or advanced by, her to her deceased husband during his last illness.
This claim of credit on their part was objected to by the eon--, testant, and upon this appeal he claims that it was not properly proven as a valid claim in tier favor against the estate.
Upon the hearing the executors proved by -the witness Jennie W. ¡Wood that, upon one occasion during his last illness, she was sent by the deceased to the bank to get for him $200 in money; that the cashier would not let - her have it, and she returned to the deceased and :só reported to him; that the deceased then told Mrs. Knibbs to Use her own money to pay household expenses with and she would be repaid for it. This witness was a legatee under the
The appellant further contends that the surrogate erred in holding that all the property left by the deceased had been properly inventoried and also that the amounts allowed to the executors as payments made by them to the attorney Long for legal services rendered to them were too large and not warranted by the evidence. Heither of these objections should be sustained. There is no evidence to show that the Stowe. mortgage, which appellant
■. My conclusion is, that the decree, so far as it sustains the credit of $251 allowed to the executors as- paynrent upon the note above mentioned,, should be reversed and a new trial had upon that ques-' tion before the surrogate; and that, in all other respects, the said decree be affirmed, without costs or disbursements to either party upon this 'appeal.
All concurred; Smith and Chase,. JJ., in result.
Decree, so far as it sustains credit of $251 allowed to the executors as payment upon a noté, reversed and a new trial on that issue granted before the surrogate, with costs to the appellant to abidé event, and in all other respects decree is affirmed, without costs to either party.