
    In the Matter of the Judicial Settlement of the Account of James A. Dwyer, as Administrator, etc., of Patrick Sheedy, Deceased. United States Fidelity and Guaranty Company and Others, Appellants; Michael J. Clifford, as Substituted Administrator, etc., of Patrick Sheedy, Deceased, Respondent.
    First Department,
    April 6, 1906.
    Administrators and executors — administrator compelled to account for "bank deposit of intestate “in trust” for deceased person on whose estate he also holds letters of administration.
    On an accounting by an executor of one Patrick Sheedy, whose letters had been revoked, it was shown that among the assets of the estate was a savings bank deposit made by the intestate in 1900 in his name, “in trust for Jqhanna - Sheedy,” his sister,'who died in 1898, being then known under the name of Johanna Dwyer. The accounting administrator, being also the son and administrator of Johanna Sheedy, or Dwyer, had withdrawn said deposit and redeposited it in his own name, and had afterwards withdrawn the same and closed the account.
    
      Held, that he should be compelled to account for said deposit as administrator of Patrick Sheedy, and that the question as to whether an irrevocable trust had been created in favor of the testator’s sister should be left for determination in a proceeding to ascertain to whom the amount should ultimately bé distributed.
    Appeal by the United States Fidelity and Guaranty Company and others from a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 28th day of August, 1905, in so far as said decree modifies the report and decision of the referee by charging the accounting, administrator with the sum of $3,105> deposited in the- Bowery Savings Bank to the credit of Patrick Sheedy, in trust for Johanna Sheedy. ■
    
      Leonidas Dennis, for the appellant. United States Fidelity and Guaranty Company.
    
      Edward J. McGuire, for the appellants Garvey.
    
      Charles Goldzier, for the respondent.
   Ingraham, J.:

One Patrick Sheedy died intestate and letters of administration upon his estate were issued to James A. Dwyer on the 22d day of January, 1903, by the surrogate of the. county of New York. On. the 27th day of June, 1903, these letters were revoked by the surrogate and letters of. administration were issued. to Michael J. Clifford. In August, 1903, Clifford commenced proceedings, to compel Dwyer to account, and on the 3d day of December, 1903. a decree of. the surrogate was entered granting that application, Subsequently the administrator filed' his accounts, to which objections were filed, whereupon the surrogate sent the account to a referee to hear and'determine all question's arising upon the settle-' ment thereof. The referee reported settling the accounts. He found that there was a balance of $34,324A4 in the hands of the* administrator. To this report the administrator filed' exceptions, and these exceptions coming on to be heard, the surrogate modified the report by charging the accounting administrator with the sum of ;$3,.105, deposited in the Bowery Savings Bank to the credit of Patrick Sheedy in trust for Johanna Sheedy, and in other particulars by which it appeared that there was a balance in' the hands of the accounting administrator of $41,181.65.

The' question raised upon this appeal relates solely , to charging the accounting administrator with the sum of $8,105 deposited in the Bowery Savings Bank to the credit of Patrick Sheedy in trust for Johanna Sheedy. It appeared that, on February 13, 1890, the intestate deposited in the Bowery Savings Bank the sum of $3,000 in his own name in trust for Johanna Sheedy. In each year after this deposit the intestate drew out the interest'of this amount down to February 6,. 1902, the total drafts for that period amounting to $1,410, and there was credited upon that account during that period this exact amount as interest, so that down to January, 1902, all the interest on this account had been withdrawn by the plaintiff’s intestate. In January, 1903, there was credited as interest for that year the sum of $105, which, with the amount of deposit, made $3,105. On January 28, 1903, this amount was withdrawn from the bank by drafts signed by James A. Dwyer as administrator and the account closed. The money thus withdrawn seems to have been redeposited in the bank in an account in -the name of James A. Dwyer personally. Dwyer withdrew from this account on February 9, 1903, $605, and on February 26, 1903, $1,500, and subsequently withdrew .the balance of the account and the account was closed. It was then admitted that Johanna Dwyer, formerly Johanna Sheedy, died on the 3d of August, 1898,,before the death of Patrick Sheedy, and that letters of administration were issued out of the Surrogate’s Court to James A. Dwyer as administrator of the goods, chattels and credits of Johanna Dwyer, formerly Johanna Sheedy, deceased, on the 22d day of January, 1903; that he qualified as such administrator and was at the hearing duly qualified, appointed and was acting as administrator of that estate. It was further conceded that the bankbook of the Bowery Savings Bank showing this account was found among the effects of Patrick Sheedy after his death; that the accounting administrator did not know of the existence of the bankbook until it was found after the death of the decedent, and did not know of any account in trust for Johanna Dwyer or Johanna Sheedy; that the said Johanna Dwyer was the mother of the accounting administrator and the sister of Patrick Sheedy; that the intestate was well acquainted with his sister and was in the habit of visiting her after she became a widow .and that they were on friendly terms up to the time of her death.

The referee found ás a conclusion of law that the funds, money and accounts" remaining on deposit in the Bowery Savings Bank at the time of the death of the decedent in the name and form of Patrick Sheedy, in trust for Johanna Sheedy, were and are a trust fund and moneys subject to a valid trust in favor of said Johanna Sheedy, her administrators, heirs and next of kin, and were and are not property or assets of the estate of Patrick Sheedy, deceased, and said James A. Dwyer, as administrator of his estate, is not required to account for the same herein.” This conclusion of law was excepted to by "the substituted administrator and was "dis: approved .of by the” surrogate, and he held that the rights ,of the representative of Johanna Sheedy, afterwards Johanna Dwyer, to this fund was not at issue in_ this accounting and that no adjudication, would now be made as to-the ownership of that,fund, but that it should be included in the amount received "by the- accounting administrator and passed over to his successor, so that any person interested could- commence’proper proceedings to determine its ownership. With this view we concur. • .

The deposit, was made under'circumstances which- at least raise the question whether an irrevocable trust was created in favor of the in tes, tate’s sister, at one time known as Johanna Sheedy, but for many years prior to this deposit known as Johanna Dwyer. The.accounting administrator had collected 'this fund as administrator of Patrick Sheedy. - It was'in his hands as part, of the estate for which -he was accountable. If he as administrator of Johanna Dwyer had made á claim to- this fund, ho being at .the same time administrator of Pat-' rick Sheedy, it could- not be . determined by his simply abstracting the fund that he collected as administrator of Patrick Sheedy. The letters, of administration having been revoked he was bound to account for all. the property that came into his hands as administrator and the question as to the ownership'of the funds thus received was to" be determined upon the final accounting. , (Code Civ. Proc. § 2131.) We think, therefore, that .the surrogate was clearly right in holding the former administrator accountable to his successor for the amount of moneys collected from the Bowery Savings Bank as administrator of Patrick Sheedy, leaving "it to the court to determine in "a proper proceeding towhom this amount should ultimately be distributed.

As this is the only question presented upon this appeal ,the conclusion follows that the decree of the surrogate should be affirmed, with costs against the accounting administrator personally.

O’Brien, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.

Decree affirmed, with costs against- the accounting administrator personally. Order filed,  