In re the Judicial Settlement of the of Account Farmers' Loan & Trust Co.

63 N.Y.S. 227 | N.Y. App. Div. | 1900

Per Curiam:

In the opinion which was written upon the decision of this case, and in the decision which was made, the court adopted as the basis of liability of the estate of W. H. Starbuck to the claimant the statement in the handwriting of the deceased, under date of December 6, 1894, wherein such liability was stated as being the sum of $60,000.- The stipulation which was filed, however, did not admit such statement of liability as the correct sum, but stipulated to transfer the proceeds of the real estate held in the name of Matilda. E. Starbuck, in consideration of the allowance of her claim at the sum of $50,000 and interest from January 1, 1885. Upon the application for settlement of this order we have re-examined the whole case and have reached the conclusion that the amount to be allowed the claimant should be based upon the account rendered by the deceased to Matilda E. Starbuck, as the same was -made up by Sidney Starbuck and delivered by the deceased to the claimant. This conclusion rests upon the fact that-the several statements made by the deceased, which were found among his papers, do not in all respects agree as to the amount of the proceeds of the bonds and interest. A careful examination discloses that the statement as to the amount to which the claimant was entitled is not accurately given in any of the statements, neither does it purport to be accurate. It must be regarded, however, as established that the account which was delivered to the claimant by the deceased was an accurate statement of his liability to her at that time, so far at least as liability for the bonds, together with interest thereon, is concerned. Indeed, the account shows an additional liability in the claimant’s favor of $13,000 and upwards, for which no claim has been made. .Upon the 1st day of January, 1885, therefore, we have an undisputed liability for $50,000, represented by the bonds. There is no testimony in the case showing that any payment was made upon this liability after that time, while the testimony of the claimant is to the effect that nothing was ever paid thereon to her ; and if this be the fact, then she is properly entitled to receive that sum, together with interest on the same from that date, and this is in accordance with the stipulation filed in this court.

After much consideration we have concluded that the mere disparity in statements, as between the last one and those which precede it, made by the testator, is not sufficient to overcome the account and the testimony which has been given in support of it. The order to be entered will, therefore, direct that the claimant be entitled to receive from the estate of the deceased, upon filing the stipulation heretofore mentioned, the sum of $50,000, together with interest thereon from the 1st day of January, 1885. .

So far as the decree of the surrogate directs the payment to the-special guardian -out of the estate, beyond the taxable costs, it is erroneous. The power of the surrogate in making allowance to the special guardian payable out of the general fund is limited to the-taxable costs. While having the power to make an allowance to tlie special guardian, it can only be charged upon the interest and estate of the wards which he represents. (Matter of Robinson, 40 App. Div. 30 ; affd. on appeal, 160 N. Y. 448.) The allowance to-the special guardian, which we affirm, must, therefore, be made a-charge upon and payable out of the infant’s estate.

The decree will be prepared in accordance with this memorandum and entered as the decision of this court. (Matter of Beck, 6 App. Div. 211; affd. on opinion below, 154 N. Y. 750.)

All concurred, except Hiksci-iberg, J., taking no part.

Order settled.