201 N.Y. 61 | NY | 1911
The action is for conversion of money belonging to the estate of Thomas J. Scully, deceased, of which the plaintiff is administratrix. The answer denied that the money belonged to said Thomas J. Scully, and averred that it was the property of the father of both deceased and defendant, one John Scully. From the evidence given on behalf of the plaintiff it appeared that Thomas J. Scully died in 1900 intestate, and that letters of administration upon his estate were issued to the plaintiff upon October 12th of that year. At the time there was on deposit in the Mechanics and Farmers' Savings Bank in Albany to the credit of said Scully, $815.75. On the next day the plaintiff, in company with John Scully, the *63 father, withdrew the deposit from that bank and on the same day deposited $760 of the money so withdrawn in the National Savings Bank to the credit of Sarah Scully, the plaintiff, and Margaret P. Scully, the defendant, payable to either or to the survivor of them. On January 3rd, 1901, the defendant Margaret Scully drew this money from the bank and it has never been restored to the plaintiff. John Scully died February 14th, 1905, and this action was commenced in November of that year. The defendant testified that she went with her father and the plaintiff at the time the money was withdrawn from the bank; that the father had possession of the bank book; that when the money was drawn out the plaintiff gave it to the father, saying "here is your money;" that then all went to the National Savings Bank and the sum of $760 was there deposited, as before described, John Scully retaining the difference between that amount and the sum withdrawn from the Mechanics and Farmers' Savings Bank, and the bank book was given to the defendant. She further testified that the savings bank book showing the deposit in the Mechanics and Farmers' Bank had always been in the possession of her father. A sister of the defendant testified to interviews between her father and her brother tending to show that the brother had money belonging to the father which he deposited in his own (the brother's) name. At the close of the evidence the court excluded testimony offered by the defendant to show that when she withdrew this money it was disposed of in accordance with the directions of her father, John Scully. The court then directed a verdict in favor of the plaintiff, and the judgment entered thereon has been affirmed by the Appellate Division.
That the transaction, if it was solely as testified to by the plaintiff, was a devastavit of the estate, and that the plaintiff was not debarred from maintaining the action in her representative capacity because she had joined in the wrong, is clear. The counsel for the respondent contends that the admission claimed to have been made by the plaintiff, that the deposit was in reality the property of her father-in-law, *64
was not evidence against the estate she represented. Doubtless the rule is that an admission by an administrator cannot bind the estate, unless made in the discharge of his functions as administrator. (Davis v. Gallagher,
The judgment should be reversed and a new trial granted, costs to abide the event.
GRAY, HAIGHT, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur; VANN, J., absent.
Judgment reversed, etc.