98 N.Y.S. 329 | N.Y. App. Div. | 1906
One Patrick Sheedy died intestate and letters of administration upon his estate were issued to James A. Dwyer on the 22d day of January, 1903, by the surrogate of the. county of New York. On. the 27th day of June, 1903, these letters were revoked by the surrogate and letters of. administration were issued. to Michael J. Clifford. In August, 1903, Clifford commenced proceedings, to compel Dwyer to account, and on the 3d day of December, 1903. a decree of. the surrogate was entered granting that application, Subsequently the administrator filed' his accounts, to which objections were filed, whereupon the surrogate sent the account to a referee to hear and'determine all question's arising upon the settle-' ment thereof. The referee reported settling the accounts. He found that there was a balance of $34,324A4 in the hands of the* administrator. To this report the administrator filed' exceptions, and these exceptions coming on to be heard, the surrogate modified the report by charging the accounting administrator with the sum of ;$3,.105, deposited in the Bowery Savings Bank to the credit of Patrick Sheedy in trust for Johanna Sheedy, and in other particulars by which it appeared that there was a balance in' the hands of the accounting administrator of $41,181.65.
The' question raised upon this appeal relates solely , to charging the accounting administrator with the sum of $8,105 deposited in the Bowery Savings Bank to the credit of Patrick Sheedy in trust for Johanna Sheedy. It appeared that, on February 13, 1890, the intestate deposited in the Bowery Savings Bank the sum of $3,000 in his own name in trust for Johanna Sheedy. In each year after this deposit the intestate drew out the interest'of this amount down to February 6,. 1902, the total drafts for that period amounting to
The referee found ás a conclusion of law that the funds, money and accounts" remaining on deposit in the Bowery Savings Bank at the time of the death of the decedent in the name and form of Patrick Sheedy, in trust for Johanna Sheedy, “ were and are a trust fund and moneys subject to a valid trust in favor of said Johanna Sheedy, her administrators, heirs and next of kin, and were and are not property or assets of the estate of Patrick Sheedy, deceased, and said James A. Dwyer, as administrator of his estate,
The deposit, was made under'circumstances which- at least raise the question whether an irrevocable trust was created in favor of the in tes, tate’s sister, at one time known as Johanna Sheedy, but for many years prior to this deposit known as Johanna Dwyer. The.accounting administrator had collected 'this fund as administrator of Patrick Sheedy. - It was'in his hands as part, of the estate for which -he was accountable. If he as administrator of Johanna Dwyer had made á claim to- this fund, ho being at .the same time administrator of Pat-' rick Sheedy, it could- not be . determined by his simply abstracting the fund that he collected as administrator of Patrick Sheedy. The letters, of administration having been revoked he was bound to account for all. the property that came into his hands as administrator and the question as to the ownership'of the funds thus received was to" be determined upon the final accounting. , (Code Civ. Proc. § 2131.) We think, therefore, that .the surrogate was clearly right in holding the former administrator accountable to his successor for the amount of moneys collected from the Bowery Savings Bank as administrator of Patrick Sheedy, leaving "it to the court to determine in "a proper proceeding towhom this amount should ultimately be distributed.
As this is the only question presented upon this appeal ,the conclusion follows that the decree of the surrogate should be affirmed, with costs against the accounting administrator personally.
O’Brien, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.
Decree affirmed, with costs against- the accounting administrator personally. Order filed,