
    (67 Hun, 237.)
    In re BRONSON’S ESTATE.
    vSupreme Court, General Term, Fourth Department.
    February, 1893.)
    1. Notice of Appeal—Description of Decree.
    A widow filed a claim against the estate of her deceased husband for certain rents and insurance money received by him in his lifetime, and a decree was entered allowing a part of the claim, without stating how it was made up. Claimant, in her notice of appeal, stated that the appeal was from that part of the decree which established the claim at the sum allowed, and from the part which disallowed the insurance money. The decree was reversed as to the part appealed from. Held, that the appeal as taken was from that part of the decree that adjusted the entire claim at the sum allowed, as well as from the disallowance of the insurance money, and it was error, on the second trial, to exclude evidence of rents due, in addition to the sum proved on the former trial.
    2. Declarations of Decedent—Reversible Error.
    In such case it appeared that a draft for the insurance money was payable to the widow, and that she had indorsed it to deceased, who had deposited it in bank to his credit. Testimony was received, on behalf of the estate, and against the objection of the widow, as to declarations of deceased that the insurance money was for buildings which he had built with his own money; that he had paid the original purchase price of the land on which the buildings stood; and that theTnoney in bank was his. Held, that the declarations were improperly received, and sufficiently material to call for a reversal, within Code Civil Proc. §2545, providing that a decree of a surrogate “shall not be reversed for an error in admitting * * * evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby. ” In re Smith, 95 N. Y. 517, followed.
    
      Appeal from surrogate’s court, Oswego county.
    In proceedings for the final settlement of the accounts of Nancy Bronson, widow, and Alexander McAuley, administrators of the estate of George C. Bronson, deceased, Nancy Bronson presented a personal claim against the estate, which consisted of two items, one for rent, and the other for an insurance draft for $1,188, or the proceeds thereof, issued by the Aetna Insurance Company of Hartford, payable to the order of said Nancy Bronson, and which was deposited by decedent, in his lifetime, in the First National Bank of Camden, N. Y., to his own credit. From a decree of the surrogate’s court entered on April 11, 1892, she appeals.
    Reversed.
    Hon. Francis David, surrogate of Oswego county, filed the following decree on April 11, 1893:
    “On a former trial of this matter by this court a decree was made, allowing, to a certain extent, the claim for rent, but rejecting said claim for said insurance draft. On an appeal to the general term of the supreme court from that part of said decree which rejected said draft, by this claimant, such proceedings were had that a new trial was ordered in this court by the supreme court, and now this trial is had in pursuance of said order. 13 N. Y. Supp. 954. The issues in this matter came on to be tried by this court at a term thereof held at Williamstown, in said county, on the 22d day of April, 1891, and, after hearing the proofs and allegations of the respective parties, and th,e arguments of their counsel, and after due deliberation had in the premises, and said matter having been adjourned from time to time until this time and place, it is hereby ordered, adjudged, and decreed that the said claim of said Nancy Bronson to said insurance draft, and the proceeds thereof, of $1,188, deposited In the First National Bank of Camden, N. Y., May 20, 1884, by the said George C. Bronson, in his lifetime, and to his credit, be, and the same is hereby, disallowed and dismissed,, as unproven and unsustained, with costs and disbursements to the contestants, payable out of the estate, and the disbursements to be taxed, and, when taxed, inserted in this decree; and it is further ordered and decreed that the contestants have and recover against this estate as their costs the sum of $100; for their disbursements, $59.35; total, $159.35; and it is hereby further adjudged, ordered, and decreed that the administrators of the estate of the said George C. Bronson pay said above total sum out of any funds or assets which have or may come to their hands, belonging to said estate, and applicable thereto. ”
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    D. A. King, for appellant.
    O. M. Reilly, for respondents.
   MERWIN, J.

The appellant, Nancy Bronson, is the widow of George C. Bronson, deceased, and is one of the administrators of his estate. The administrators, in April, 1888, applied for a judicial settlement of their accounts, and thereupon the appellant presented an individual claim against the estate. The controversy here is over that claim. On the 3d August, 1875, the appellant became the owner of certain real estate, and on the 4th May, 1884\ the buildings thereon were destroyed by fire. The claim of appellant as presented is for rents received by the deceased from this property from January, 1876, to May 4, 1884, to the amount of $797, and interest thereon, $168; also for amount of draft for insurance money received by deceased May 20, 1884, $1,188, and interest thereon, $244.74; the total of the whole claim being $2,397.74. Bronson died 19th August, 1886. The claim of the appellant, and also the accounts of the administrators, were contested by some of the heirs and next of kin, and were tried together. Only esse decree was entered: thereon, and in this the accounts were adjusted, and- the claim of plaintiff was allowed at the sum of $679.05 and interest from the decease of the intestate. It did not appear from the decree how the amount that was allowed on the claim was made up. Thereafter the- claimant appealed to the supreme court, and in the notice of appeal it was stated-that she appealed—

“From that part of the order, judgment, amS decree of the surrogated court of Oswego county made in the above-entitled matter, dated December 28, 1889, which is in the following words and figures: ‘And it is hereby further ordered, decreed, and adjudged that the claim of Nancy Bronson, one of the administrators of this estate, for $2,397.74, presented by her against this estate; and contested by the next of kin of the decedent, after having heard the proofs and allegations of the several parties and arguments of counsel, an,d due deliberation! thereon, is hereby established at the sum of $679.05 and interest thereon' from the decease of the intestate, viz.: August 19, 1883, to December 28; 1889; to' interest, $135.81; making a total of $814.86.’ And she appeals from each and every part of said decree which disallows her claim for a draft of $1,188 and interest from: the date of the decease of said George C. Bronson."

This appeal resulted in a reversal of the' decree as to the part appealed from, and the granting of a new trial. In the judgment of reversal that was entered, after reciting that the proceeding bad been brought to' a-hearing upon an appeal from that part of the decree which established the claim at the sum of $679.05, and “also on an appeal from each and every part of said decree” which disallowed her claim for the amount of the draft, it was adjudged that the decree “as to the part appealed from, be, and the same is, wholly reversed upon both questions- of law and, fact,” and that a new trial be had in the surrogate’s court. The mattes then proceeded to a new trial in the surrogate’s court, and the appeal now before us is from the decree then made.

In the course of the -trial the court held that the prior appeal was only from that part of the decree which disallowed the claim on the insurance draft, and that the order for a new trial only covered that claim, and that, therefore, the claimant" had no'fight to give evidence on the subject of the rents. It was assumed that the amount as allowed in former decree was for rents. The claimant offered to prove not only the amount proved on the former trial, but an additional amount to the extent of $100. This was excluded, and exception taken. The offer woo within the amount of the claim as presented, and we think the court erred in excluding the evidence. The appeal as taken was distinctly from that part of the decree that adjusted the entire claim of the appellant at the sum of $679.05 and interest. That being reversed, as it was by the appellate court, there remained in the surrogate’s court no adjudication upon any part of the claim. The whole was open for proof, the same as if there had been no previous trial of the case.

Evidence was taken on the subject of the draft, and -the court, in its decree, decided that the appellant could not recover therefor. Among other evidence offered by the respondents, the court received, over the objection and exception of appellant, divers declarations of the deceased, in regard to matters disputed at the trial. The appellant claims error in these rulings. The draft was payable to the order of the appellant. She indorsed it, and allowed her husband, the deceased, to take it, and he thereupon took it to a local bank, and had the proceeds placed to his credit. At his death $1,000 of such proceeds remained in the bank. The main question at the trial was whether the draft, after its indorsement by Mrs. Bronson, was delivered by her to Mr. Bronson for the purpose and with the intent of transferring to him absolutely all^her interest in the draft and its proceeds. Ordinarily the indorsement and delivery would be presumptive evidence of the transfer of the title of the proceeds, but where the transfer claimed is from the wife to the husband a different rule is said to prevail. In 2 Perry, Trusts, § 666, it is said:

“If a husband receives the capital fund of his wife’s separate property, there is no presumption that she intended to give or transfer it to him, but he is prima facie a trustee for her, and a gift from her to him will not be presumed without clear evidence. ”

See, also, Wormley’s Estate, 137 Pa. St. 101, 20 Atl. Rep. 621; Jaques v. Methodist Episcopal Church, 17 Johns. 548; Gage v. Dauchy, 28 Barb. 622, reversed on other grounds in 34 N. Y. 293; 8 Amer. & Eng. Enc. Law, 1333. In the Jaques Case it is said a wife may give of her separate property to her husband as well as any other person, if her disposition of it be free, and not the result of flattery or force or improper treatment.

With a view of showing a reason for an absolute transfer, the respondents sought to show that the buildings destroyed by fire were built by the deceased from his own means, and that upon this account the insurance moneys were regarded by the appellant as belonging to her husband. Some of the declarations above referred to were upon this subject, and were to the effect that the buildings cost him, the deceased, several thousand dollars; that he would lose by the fire over a thousand dollars; that he paid the original purchase price of the property; also, upon several occasions, that he said the money in the bank was his. These declarations, being received in behalf of the estate, were clearly incompetent. Weller v. Weller, 4 Hun, 195. This seems to be conceded, but it is claimed that they were not sufficiently material to call for reversal, within section 2545 of the Code. We are, however, inclined to the opinion that, under the construction of this section in Re Smith, 95 N. Y. 517, the declarations referred to were received to such an extent as to call for reversal.

The appellant also claims that the surrogate, in deciding the case, took into consideration material evidence that had been given on the former trial, but had not been given upon this. This fact, however, is only; apparent, if at all, from the opinion as printed in the case. This is hardly a sufficient basis for an exception. It is, of course, true, as claimed by the appellant, that the case should have been decided upon the evidence given at the trial in hand, and upon that only. Whether it was so decided, and, if not, what remedy the appellant would have, it is not necessary here to consider, in view of our conclusions upon other parts of the case. It follows that by reason of the errors above referred to in regard to the claim for rents, and in receiving the declarations of the deceased, the decree must be reversed.

Decree of surrogated court reversed, and new trial ordered, costs of the appeal to the appellant, payable out of the estate. All concur. 
      
      Code Civil Proc. § 3545, provides that a decree of a surrogate “shall not be reversed, for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby. ”
     