38 Misc. 717 | N.Y. Sur. Ct. | 1902
Gustave Knab died intestate leaving him surviving Mary Knab, his mother, and Emma,- David, and George Knab — his only sister and brothers, and Mary Heussle and Louisa .Schamel, his half-sisters. The brother, David Knab, was appointed administrator of this estate. It appears that the estate consists of $4,760.94, which represents the proceeds of a policy of insurance npon the decedent’s life which was made payable to his legal representative; and some stock and personal effects valued at $150.
The half-sisters, Mary Keussle and Louisa Sehamel, objected to the claims of Mary Knab and Emma Knab, as allowed by the administrator, upon the grounds that the same were excessive, and not valid claims against the estate of the deceased.
The account, and the objections thereto, were sent to Mr. Adolph Rebadow, to take and report the evidence upon the facts relating to the claims of Emma Knab and Mary Knab, and to hear and determine all questions arising upon such claims.
Objections were made by the contestants before the referee on the ground that a portion of these claims was barred by the Statute of Limitations.
The referee made his report, finding the claims were duly presented to said administrator, that he allowed the same, and decided that they were valid and subsisting claims against the deceased, and should be paid.
I conclude, from a careful .reading of the testimony and report, that the referee held that the burden of establishing the validity of so much of the claims as appear upon their face to be barred by the Statute of Limitations, was upon the administrator, and that the burden of establishing the invalidity of so much of the claims as appear not to be barred by the .Statute of Limitations, was upon the contestants.
The questions arising for consideration are, first, whether upon an accounting a claim allowed by an administrator, and not
Matter of Warrin, 56 App. Div. 414, settles the first question. In that case the Appellate Division of the Eirst Department held that where the claim is allowed, although unpaid, the party attacking such claim assumes the burden of establishing its invalidity.
The second question is not free from doubt. The Warrin case seems to hold that a claim, even though barred by the Statute of Limitations, when allowed by the administrator, should be treated as any other claim not barred.
It is the duty of an administrator to set up the Statute of Limitations against any claim or a portion of a claim barred by the statute, and when a claim or part of a claim is allowed, which on its face is so barred by the statute, the administrator ought to be required to satisfy the objecting parties and the court that the question of the statute was considered before making such an allowance.
A claim which upon its face appears to be, in whole or in part, barred by the statute, may, nevertheless, be allowed, if the facts and circumstances surrounding the claim are such that the statute could not be successfully raised against the claim.
In the Warrin ease the court presumed that payments were made, and if that decision is correct, then it follows that the court may indulge in the presumption that facts and circumstances were presented to the administrator which justified the allowance of such a claim.
If it is conceded that the ruling of the referee in this regard be erroneous, and that the burden of proving the validity of
The evidence presented to the referee was given by the administrator himself, and David Knab. Also the account of the administrator and the claim as presented. The administrator and David Knab are next of kin and the allowance of these claims, entirely wipes out their interest in the estate of the decedent. These witnesses were called in behalf of the administrator. Their evidense was competent notwithstanding the objections which the contestants urged under section 829 of the Code, and this is so in the case of David Knab, who was one of the sureties on the bond of the administrator. The administrator testified that he allowed the claims after an examination and consultation with his attorneys, and because he had a personal knowledge of nearly all of the items. That the decedent desired to become a civil engineer; that he commenced the course of study for that profession at Cornell University, and soon thereafter his father died; that the decedent wanted to continue his course of study; that in the family talk had in the presence of the claimants, the administrator and the said David Knab, soon after the father’s' death, the deceased stated that he would like to go to college, and the claimants replied that they would give him the money, if he would pay it back again, and the decedent said he would if he could, and thereafter took out insurance so that if he was killed on the road, or if anything happened, they would be sure of their money; that they would get interest on the same. At the same time the decedent told them he would pay them when he was able-—-when he got through with school; that it would cost quite a bit to finish up, as he was put back in his studies on account of his father’s death. He also told them he would pay it back when he earned the money, and that he would
The testimony of David Knab corroborates the statement of the administrator in relation to the conversation which took place-between the claimants and the decedent soon after the father’s death. The decedent at this time told his mother and sister that if they would let him have the money, as soon as he got to-earning money he would pay it back with interest. That after he got the trade learned he could earn “ big pay.” That it was a good trade, and he could earn lots of money — then he would pay it back.
That in 1895 the administrator and the deceased compared the books of the claimants and the decedent, wherein was kept an account of the moneys loaned to the deceased, and the books were found to agree; that the decedent then said that the account was right, and that he wanted the folks to be sure of their money. That he wanted to take out some insurance, and if anything should happen he wanted his mother and sister who* loaned him the money to be sure that they would get it back; that after he got through school he would get a good position, and it would not take long to earn that money, and that he wanted to repay those amounts with interest.
In Tebo v. Robinson, 100 N. Y. 27, it was held that a cause of action will not accrue under a promise to pay the moment when able, until the defendant had the pecuniary ability to pay the debt.
That decision seems to cover the case at bar. The decedent did not begin to earn any money out of which he could pay this indebtedness until some time in 1900.
It follows from the foregoing views that the report of the referee should be confirmed; and a decree may be entered accordingly.
Decreed accordingly.