
    (92 Misc. Rep. 649)
    In re MAY'S ESTATE.
    (Surrogate’s Court, New York County.
    December 2, 1915.)
    1. Gifts <§=49—Degree of Proof Required.
    Where a decedent in his lifetime delivered money to A., with the understanding that A. was to pay the decedent’s living expenses and the cost of his burial therefrom, A.’s claim that he was to retain the balance must be established by clear and adequate proofs.
    [Ed. Note.—For other cases, see Gifts, Cent. Dig. §§ 95-100; Dec. Dig. <§=49.]
    2. Executors and Administrators <§=434—Proceedings to Discover Assets —Doing Equity.
    A discovery proceeding in the Surrogate’s Court, in which it was sought to recover from A. the balance of the fund left with him by the decedent, was in the nature of an equitable proceeding, and the administrator must, as a condition of relief, do equity with respect to allowing deductions for sums actually expended.
    
      ‘<£=£>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    
      [Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 1698-1715; Dec. Dig. <®=434.]
    Discovery proceeding in the matter of the estate of William May. Order in accordance with the opinion.
    Walter A. Swett, of New York City, for administrators.
    Peter P. McElligott, of New York City, for respondent.
   POWLER, S.

This is a discovery proceeding before me. I am satisfied that Mr. Anderson received some money from Mr. May, a feeble and illiterate old man, and that the understanding was that out of it he should pay Mr. May’s living expenses and the cost of his burial. There is no dispute about the amount so received. Mr. Anderson’s claim is that he was entitled to retain the balance. With the evidence of this claim I am not satisfied. Such a claim must always be established by clear and adequate proofs. Consequently the balance remaining in his hands, after deducting all the payments made to or for the use of the deceased, must be paid over to the administrator.

As this resembles an equitable proceeding, the administrator must do equity as a condition of relief, and 1 shall be very liberal in allowing deductions for sums actually expended.

Settle order on notice.  