
    In the Matter of the Judicial Settlement of the Accounts of the Executors of the Estate of James Knibbs, Deceased. William H. Knibbs, Appellant; Luhr Eggers and Others, as Executors, etc., of James Knibbs, Deceased, Respondents.
    
      Accounting by executors—testimony by one of them .(in support of a claim allowed to her on. a note made by the testator) that she had possession of it —■it is.inadmissible to create an inference of delivery — testimony of her coexecutor as to conversations with the testator is. also inadmissible — competency of the testimony of a legatee as to statements by the testator — testimony, of the executrix¡ having received: . • the money, as to expenditures made on the faith of such statements.
    
    Where, on an accounting, by executors, one of whom was the testator’s widow,objection is made to the allowance of a credit for moneys paid to the widow upon a note purporting to have been executed by the testator to the order of his widow, and of which the widow claimed to be the owner at the time of the testator’s death, evidence given by the widow to the effect that she had possession of the note, which evidence' is offered for the purpose of creating an • inference of the delivery of the note, and is the only evidence-ón that point, - involves- a transaction between the witness and the testator and is inadmissible under section 829 of the Code of Civil.Procedure.
    Evidence,' given by one of the widow’s coexecutors, that the note was paid because he knew the testator’s- ^signature and all the circumstances attending the note and had been told them by the testator during his lifetime, is also, objectionable under said section 829.
    A' legatee, particularly one whose legacy has been paid in full, is not incompetent, under section 829 of the- Code of- Civil Procedure, to testify, in support of a’. credit claimed by the executors, for moneys paid by them to the widow in payment of money which she claimed to have advanced to the testator during bis lifetime, that she heard the testator instruct the widow to use her individual funds in payment of the testator’s household expenses and that she would be repaid therefor.
    Evidence given by the widow in support of the latter claim, to the effect that certain itemized bills shown to her were paid by her and'that they represented household expenses; does not involve any transaction with the decedent and is consequently not inadmissible under section 839 of the Code of Civil Procedure.
    Appeal by William H. Knibbs from a decree of the Surrogate’s Court of Rensselaer, county, entered in said Surrogate’s Court on the 21st day of September, 1904, judicially settling the accounts of Luhr Eggers and others, as executors of James Knibbs, deceased.
    
      Nash Rockwood, for the appellant.
    
      J. K. Long, for the respondents.
   Parker, P. J.:

We are asked by the contestant to reverse the decree from which this appeal is taken because of several alleged errors in the decision of the surrogate both of law and .of fact. After a careful examination of the record before us, I am of the opinion that the objection taken in the first point of the appellant’s brief is well taken.

On a final judicial settlement of their accounts as executors under the will of James Knibbs, deceased, these executors had credited themselves with $251, being the amount of principal and interest paid by them to one of their number, viz., Emma L. Knibbs, the widow of the deceased, upon a certain promissory note dated May 8, 1896, and executed by the testator to the order of Emma L. Knibbs, payable twelve months after date, and of which note the said widow claimed to be the owner at the time of the deceased’s death. The appellant filed an objection to the allowance of such payment as a credit to the executors, upon the ground that it did not appear to be a valid claim against the deceased’s estate. "Upon the hearing the surrogate overruled the objection, and held that such note was shown to be a valid and outstanding note against the deceased in the hands of his widow, and held that the amount thereof was well paid to her and credited in the executors’ account.

On the hearing the said widow was sworn in her own behalf, and testified, under proper objection and exception that such evidence violated the provisions of section 829 of the Code of CSvil Procedure, that she had -had possession of such .note, which was then shown to her.- She testified no further concerning it, but it is well settled that when such evidence is taken for the purpose of inferring a delivery from the deceased maker, and there is no proof of any other method of delivery, such testimony will be deemed evidence of a transaction had between the witness and the deceased, and inadmissible under such section.

There was no evidence concerning the delivery of this note, as to how it left' the possession of the deceased,1 or came into the possession of the executors, save that one statement of the ’widow and the further testimony of her coexecutor Maxwell, that ■ the note was paid because he knew the signature of the deceased and all the circumstances attending it, and had been told them by the deceased in his lifetime. This evidence was taken under objection and exception, and so far as it discloses any fact at' all, tit is manifestly objectionable under the said section 829. The witness was allowed to testify, in his own behalf, against the estate, to a conversation had with the deceased during his lifetime.

These rulings were errors, and thd evidence-thus adduced was not sufficient to sustain the widow’s claim that she held the note as a valid claim against the estate, and in this respect the decree must, be reversed. "

Another of the items of credit allowed by the surrogate to such executors was the sum of $230.47'paid by them to the said widow for moneys loaned or advanced by, her to her deceased husband during his last illness.

This claim of credit on their part was objected to by the eon--, testant, and upon this appeal he claims that it was not properly proven as a valid claim in tier favor against the estate.

Upon the hearing the executors proved by -the witness Jennie W. ¡Wood that, upon one occasion during his last illness, she was sent by the deceased to the bank to get for him $200 in money; that the cashier would not let - her have it, and she returned to the deceased and :só reported to him; that the deceased then told Mrs. Knibbs to Use her own money to pay household expenses with and she would be repaid for it. This witness was a legatee under the deceased’s will, and her evidence was objected to on the ground that it violated section 829 of the Code of Civil Procedure. The executors replied that her legacy had been paid in full, and that she was, . therefore, not a party to the proceeding, nor at all interested .in the event of the accounting. But, further than that, it seems to me that such witness did not testify in her own behalf or interest, nor did her evidence have any bearing whatever upon her claim as a legatee. Hence her testimony was'not in violation of the. section referred to. With her evidence properly in the case, a request on the part of the deceased to his widow to advance her own money and make the necessary purchases for the household, and that she should be repaid for the same, was proven to the satisfaction of the surrogate. The next step required was to prove the fact that the money had been ■ advanced by the widow for the purpose so directed and the amount thereof. These facts the widow and executrix has sought to establish by her own testimony. That is, certain itemized bills were shown her and she was allowed to testify that she paid them during the deceased’s last illness, and that they were for household use. This was strenuously objected to as being inadmissible under said section 829; but, in my judgment, it does not violate the provisions of that section. It calls for no transaction with the deceased. Alone, by itself, it would create no liability against him. Had the deceased survived he Could not have been a witness as to such facts, because, he knew nothing about them. Knowledge as to those facts rested certainly with the witness and the other parties from whom she purchased, and, therefore, it does not seem to come within the rea-, son or purpose of that section. I am of the opinion that no error was committed in the reception of evidence upon this question • that such evidence was sufficient to warrant the conclusion which the surrogate reached, and that the decree, as to this claim must be allowed to stand.

The appellant further contends that the surrogate erred in holding that all the property left by the deceased had been properly inventoried and also that the amounts allowed to the executors as payments made by them to the attorney Long for legal services rendered to them were too large and not warranted by the evidence. Heither of these objections should be sustained. There is no evidence to show that the Stowe. mortgage, which appellant claims was omitted from the inventory, belonged to the estate at the time of the testator’s death; and there is evidence: enough of what. Mr. Long did, and of what such services were worth, to sustain the surrogate’s finding upon that question.

■. My conclusion is, that the decree, so far as it sustains the credit of $251 allowed to the executors as- paynrent upon the note above mentioned,, should be reversed and a new trial had upon that ques-' tion before the surrogate; and that, in all other respects, the said decree be affirmed, without costs or disbursements to either party upon this 'appeal.

All concurred; Smith and Chase,. JJ., in result.

Decree, so far as it sustains credit of $251 allowed to the executors as payment upon a noté, reversed and a new trial on that issue granted before the surrogate, with costs to the appellant to abidé event, and in all other respects decree is affirmed, without costs to either party.  