5 A.D. 456 | N.Y. App. Div. | 1896
The administrator allowed and paid to Patrick S. Boylan the sum of $3,124, being the amount of principal and interest due on a certain promissory note alleged to have been made by the deceased and held by said Boylan. This payment was objected to by the special guardian on behalf of the infant contestants, and the questions presented upon this appeal relate to the rulings of the referee which excluded evidence offered to sustain the validity and the payment of this claim.
Patrick McNeany died December 29, 1891. He was the brother of John McNeany, the appellant, to whom letters of administration were issued, and he left surviving him, in addition to his brother John, as his next of kin, a sister and three infant nephews and nieces. The note in question bore date November 24, 1891, and was payable four months after date to the order of John McNeany, the appellant, with interest. It purported to have been signed by the deceased by making a cross as his mark, and it was witnessed by Boylan. It was claimed by the appellant, and there was testimony tending to support this claim, that the note had been transferred by him to Boylan on December 11, 1891, in consideration of the payment of the sum of $2,820, and it was alleged that the full amount due thereon had been paid to Boylan by the appellant in August, 1892.
The learned referee to whom it was referred by the surrogate to examine the account and to hear and determine all questions arising npon the objections thereto, and whose findings and conclusions were embodied in the decree, decided that the note was not proven to have been made and delivered by the deceased for a good consideration and that Boylan had not been proven to have been a bona fide holder thereof, and that the note was not a valid claim against the estate. It is a debatable question whether the referee did not err in holding that the burden of proof was upon the appellant to sustain the validity of the claim. (In re Frazer, 92 N. Y. 239.) We do not think, however, that that question is before us. There is testimony printed in the record tending to establish the validity of the note, and there are many circumstances shown which tend to discredit this evidence and to raise a strong suspicion that the claim was a bogus one.
Eor the error in excluding Boy Ian’s testimony the decree must be reversed, and there must be a new trial, with costs to abide the event, and payable from the estate.
All concurred.
Decree reversed and new hearing ordered, with costs to abide the event, and payable from the estate.