11 Mills Surr. 94 | N.Y. Sur. Ct. | 1913
Judgment has been long delayed in this matter, in which objections were filed to the account of the executrix and the hearings on the objections brought on before the surrogate. The hearings were very prolonged, the evidence is voluminous and the matter has already occupied too much time, to the prejudice of important matters pending in this court. It is only in much poorer estates than this that the surrogate can be expected to hear in person such matters as those here involved. Such matters are referrable properly to referees designated for the purpose.
The executrix in her account charges herself with property in the sum of $18,653.50. This is the dead man’s estate. She credits herself with the payment to her husband of $250 counsel fee and expenses of administration. Mr. Mulligan is an attorney and counselor at law, and as it happens the husband of the executrix herself. She also credits herself with $315 paid to William A. Keating for the collection of a $3,000 note with interest, and with the large sum of $7,075.33 paid to the said William G. Mulligan for disbursements, money claimed to have been loaned by him to John Hartmann, the deceased, during his lifetime and for professional services said to have been rendered by Mr. Mulligan to the late Mr. Hartmann during the lat
The testimony given in on the disputed items discloses that the deceased had considerable domestic trouble of no very seriious kind. He and his wife in later life disagreed about money and they were at times not on the best of terms, and it is claimed that Mr. Hartmann was fearful that Mrs. Hartmann would obtain possession of some of his property, of which he was very careful, and he was desirous of placing the estate that he possessed so as to prevent his wife from gaining control of any of it. It is conceded that Mr. Hartmann had been arrested in New Jersey for an assault on his wife. This was hardly due to his wife’s action. The public authorities were responsible for this prosecution. In any event, then it was that a friend of Mr. Hartmann and Mr. Mulligan told Mr. Hartmann that Mr. William G. Mulligan, an attorney and counselor at law at. No. 461 East Tremont avenue, in the borough of the Bronx, was a good man and that he had better go to call on this lawyer, who would probably be able to advise him in his difficulties. The deceased accordingly called on Mr. Mulligan professionally and had many conferences with him. Mr. Mulligan about this time drew a will for the deceased, in which Agnes K. Mulligan, the present executrix, Mr. Mulligan’s wife and associate with him in business, was named sole executrix. In time Mr. Hartmann came to die, and Mrs. Mulligan as the sole executrix named in the will took charge of his estate, and almost immediately proceeded to pay out of it to her husband, as she states in her account, the relatively large items which are now objected to by Mrs. Hartmann, the testator’s widow, and which are the subject of this judicial investigation before me. It may be that the close relationship existing
In a proceeding of this character, the accountant executrix, who has paid bills of the kind objected to, is, in law, held incompetent to testify to a conversation between the payee and the deceased, if she seek to be allowed the payment of such bills. Code Civ. Pro., § 829; Matter of Smith, 153 N. Y. 124; Matter of Knibbs, 108 App. Div. 134. But it has been held that the party whose claim is paid is competent to testify, as he is not a party to the proceeding or interested in the event, nor does the executrix derive title through or under such creditor. Code Civ. Pro. § 829; Glennan v. Rochester Trust, Etc., Co., 136 N. Y. Supp. 737; Matter of Fraser, 92 N. Y. 239. I was at some pains to follow these precedents on the hearing, although to
The principal issues concern the validity of the claims for professional services rendered by William G. Mulligan during the lifetime of the deceased, amounting to $4,655.33, and the amounts paid William G. Mulligan for moneys loaned to John Hartmann during his lifetime, amounting to $2,380, both of which large items were paid by the executrix, she then being the wife of the alleged creditor. These she paid quickly, though the account discloses she contests the funeral bill for the burial of Mr. Hartmann. The claims in question are supported solely by the testimony of Mr. and Mrs. Mulligan and Edward Mulligan, a brother and employee of Mr. Mulligan. No written contract between Mr. Mulligan and Mr. Hartmann, as to amounts to be charged by Mr. Mulligan for his alleged professional services, was produced, and I do not think that there ever was such a written contract. These professional services are set forth in the bill of particulars and are as follows: For the collection of $14,303.35 from Pratt & McAlpin, former attorneys for Mr Hartmann, $1,430.33. It appears that this particular sum was out on bond and mortgage; that Pratt & McAlpin, attorneys for John Hartmann, really collected this money from the mortgagor, and that Mr. Hartmann desired only to take possession of this money, and almost all that Mr. Mulligan did was to make an oral demand on Messrs. Pratt & McAlpin by calling them upon the telephone and telling them
The balance of the claim paid to Mr. Mulligan for his counsel fees is made up of services rendered by him from January 1, 1907, to March 4, 1909, and there are very few days in all that time, according to the very rough and inartificial bill of particulars furnished by Mr. Mulligan, that Mr. Hartmann did not call and spend at least two hours and sometimes as high as six hours in conference with Mr. Mulligan. What they talked about is not disclosed. It is true that Mr. Hartmann had been arrested for assaulting his wife and that Mr. Mulligan performed some slight professional services with reference to this arrest in New Jersey, but both Mr. and Mrs.,
Mr. Mulligan also drew a will for the deceased, but all the other professional services rendered by him on his own showing consist of conferences. As Mr. Hartmann’s estate was not great and his condition in life was that of a relatively poor man, the subject-matter of these conferences could have been of no great importance. The fact was that Mr. Hartmann was induced to occupy rooms over the business office occupied by Mr. Mulligan and his wife. Mr. Hartmann himself thus was a neighbor and not engaged in any business. He had been prior to this, I believe, a tailor by occupation, and had amassed some little estate. It would appear from the bill of particulars that Mr. Hartmann, being out of business, stopped at the Mulligan office nearly every day; in fact, the bill of particulars shows that from 1907 to 1909 he was apparently charged for almost every minute of the time he passed with Mr. Mulligan. All these conferences and services, outside of the collection of the $14,303.35, for which $1,430.33 was charged, are aggregated, and a lump sum of $3,255.33 charged. Mr. and Mrs. Mulligan alone testify to the value of this kind of professional services. No proof is given that any bill was ever rendered for them to Mr. Hartmann, except the testimony of Mr. and Mrs. Mulligan themselves, that they gave him a statement of some kind. The statement in question was not, however, found among Mr. Hartmann’s other papers. To my mind, the circumstantial evidence on this point, offered in behalf of the
The item of $2,380, money said to have been loaned to Mr. Hartmann by Mr. Mulligan between March 23, 1907, and January 30, 1908, is made up as follows: March 23, loan to Mr. Hartmann, $800; April 2, 1907, $40; January 3, 1908, $40; January 24, 1908, $400; January 25, 1908, $275; January 27, 1908, $100; January 29, 1908, $400; January 30, 1908, $325. No vouchers whatever were produced corroborative of these alleged loans. The only proof that this money was ever loaned to Mr. Hartmann is the testimony of Mr. Mulligan and his wife and Edward Mulligan, a brother of Mr. Mulligan. The transactions were stated, I think, to have been in cash. Mrs. Mulligan testified that at the time each loan was made a receipt was taken, and that these receipts were all lost. This is most unfortunate under the circumstances for this executrix, for at the time of these alleged loans to Mr. Hartmann it appeared that Mr. Mulligan was in the possession of a $10,000 mortgage made or assigned to Mr. Hartmann and of $4,000 in cash, for which he had given Mr. Hartmann a promissory note, signed by himself and his wife, this executrix. It seems extraordinary that if Mr. Mulligan had then $4,000 of Mr. Hartmann’s
In regard to the $250 counsel fees paid to Mr. Mulligan in the matter of the probate of the will and the transfer tax and the accounting, etc., I think the objection should be overruled, as that is a fair and reasonable sum.
I am of the opinion, in so far as the objection to the payment of counsel fees in the sum of $4,655.33 is concerned, that an allowance of $250 to cover all, including the collection of the $14,303.35 from Pratt & McAlpin, would have been ample compensation for Mr. Mulligan, and that amount I am willing to allow to the executrix, but no more. With regard to the loans alleged to have been made by Mr. Mulligan to Mr. Hartmann, amounting to $2,380, I am convinced that insufficient evidence has under the circumstances of this case been given to sanction
Decreed accordingly.