
    In the Matter of James R. Kelleher, as Executor of Ida R. Kelleher, Deceased, Appellant. Edward Hackemer, Respondent.
   Order unanimously reversed on the law and facts, without costs of this appeal to any party, motion granted, and proceeding remitted to the Erie County Surrogate’s Court to enter a decree in accordance with the memorandum herein. Memorandum: The decision of the court below was against the weight of evidence. Ida R. Kelleher owned and resided in a house, known as 473 Marilla Street in the City of Buffalo. She lived and died at that address. Over the years she accumulated cash which belonged to her and kept it in the house in the hollow leg of a dining room table. A few days before her death she had exclusive control of that cash and at all times treated it as her own. On the day of her funeral Edward Hackemer, the respondent herein, who lived with her, took the money from its hiding place, concealed it elsewhere in the house in which he continued to reside, without the knowledge or consent of the decedent’s distributees or legatees. Subsequently he placed the money so taken in a safe-deposit box in his own name, where some $4,200 are still deposited. The evidence established that this money was the property of said Ida R. Kelleher and properly belongs to her estate. Some several hundred dollars were appropriated by the respondent and should be accounted for. A decree should be entered directing that the contents of the said safe-deposit box be delivered to the petitioner herein and that the respondent Hackemer account to the estate for all of the decedent’s money which he has appropriated. (Cf. Matter of Buckler, 227 App. Div. 146.) (Appeal by petitioner-executor from order of Erie Surrogate’s Court denying motion to deliver personal property alleged to be the property of decedent.) Present — Bastow, J., Goldman, J. P., Halpern, McClusky and Henry, JJ.  