
    In the Matter of the Accounting of Joseph Hicks, Ex’r, etc.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February, 1888.)
    
    1. Evidence — Testimony of attobney ■—Competency of—Executob’s ACCOUNTING.
    Upon the accounting of an executor, endeavor was made to surcharge his account with certain moneys claimed to have been advanced to him by the testator, out of the share which might come to him after the testator's death. This sum was claimed by the executor to have been given him by the testator, and the testimony of an attorney to whom he had gone with the testator to have an agreement in regard to the money drawn up, was offered in proof of that. Held, that testimony of the attorney as to statements which each party openly made to the other, and which betrayed no. confidence reposed in him, was competent.
    2. Gift—What will not invalidate.
    
      Held, that the fact that the donee agreed to pay interest upon the gift, did not invalidate it as a gift.
    3. Wills—Legacy—Construction of.
    The fifth clause of the testator’s will was as follows: “ I give and bequeath to all my grandchildren and great-grandchildren that may be living-at the timé of my decease and * * * all the rest, residue and remainder of my estate to be divided equally between them, share and share alike, except in the division I give to my granddaughter G-. I-L, * * * three extra shares of said residue and remainder of my estate.” Held, that this was properly construed by the surrogate to be a direction to divide the residuary estate in portions, the aggregate number of which should be three in excess of the number of legatees and of these to give G-. II. four and the other legatees one.
    4 Referees—Must respond to requests to find — Code Civil Pro., §§ 2546, 1023, 993—Failure to—When it will not justify reversal of JUDGMENT.
    
      Held, that by Code Civil Procedure, §§ 2546, 1023, 993, the duty was imposed upon a referee to respond to requests to find properly submitted to him, but that his neglect to do so did not furnish ground for the reversal of a judgment based upon his report, unless prejudicial to the appellant.
    Appeal from the decree of the surrogate of Rensselaer county upon the judicial settlement of the separate account of Joseph Hacks, one of the executors of the last will and testament of Wilham Hicks, deceased.
    William Hicks died October 31, 1883. He left a will, executed November 23, 1880, which was duly admitted to probate. Letters testamentary were issued to Joseph Hicks and Jonah L. Young, the executors named in the will. Each executor presented his account to the surrogate for settlement.
    The appellants claimed that the account of Joseph Hicks should be surcharged in the sum of $8,502.
    It appeared that in 1878 Joseph Hicks gave to the testator, who was his father, a mortgage for $4,800, and interest, upon his real estate, on Fourth street, in the city of Troy. In the spring of 1882, Joseph, wishing to sell his real estate on Fourth street and purchase other real estate on Third street, requested his father to satisfy the mortgage and take a mortgage upon the Third street property. The testator satisfied the Fourth street mortgage May 15, 1882. There was then unpaid upon it, of principal and interest, $6,205.60. The fourth street property was sold, and the entire purchase money paid to Joseph, by direction of the testator. By the testator’s will, this mortgage was bequeathed to Joseph.
    Considerable testimony was given on the part of Joseph, tending to show that the testator gave him this mortgage. On the part of the contestants, testimony was also given tending to show that the mortgage was satisfied, not as a. gift of the debt secured by it, but as an accommodation to Joseph in making the sale of one property and buying the other. In June, 1882, the testator and Joseph went to the office of Mr. Hay nor, a lawyer, and told him they had made an agreement which they wished him to draw for them. The testator said he did not want any writing, but Joseph did.
    The testator told Mr. Haynor, in the presence of Joseph, that he and Joseph had settled and that he had advanced to Joseph the sum of $7,160. Mr. Haynor then made the following memorandum: “Make agreement between Joseph
    Hicks and William Hicks. William has . given to Joseph $7,160, and Joseph to pay interest monthly for support during life. Above amount advanced to Joseph on account of his share of estate. Monthly payment, $35.80. Principal not to be collected at death of William.”
    The instructions in regard to the agreement were given by Joseph in the presence of the testator. The testator afterwards called upon Mr. Haynor and inquired if the agreement was drawn. Mr. Haynor had not drawn it. The testator again said he did not want the agreement himself, but that Joseph did, and it was all right so long as Joseph wanted it so. The agreement was never drawn. Prior to that date, the testator had loaned Joseph other sums of money. Joseph paid the monthly allowance to April 1, 1883. In October following, the testator, who was»then about seventy- eight years of age, was found upon an inquisition by a jury to be of unsound mind, and that he had been so for about three months.
    The contestants claimed that the testator was of unsound mind at the time of the satisfaction of the mortgage and of the interviews with Mr. Haynor. Much testimony was elven upon this issue.
    The accounts of the executors and the objections of the contestants were referred to a referee, who reported that the testator and Joseph Hicks did, on the 23d day of May, 1882, make an agreement whereby Joseph was to retain as his own the principal sum of $7,160, and agreed to pay his father $35.80 per month from that time during his life, that Joseph did pay it up to April 1, 1883, making payments to the committee of the testator after his appointment in November 1883, that Joseph should be charged with the monthly installments remaining unpaid at the death of the testator, but not for any part of the principal sum of $7,160; that the testator was at the time of making the agreement with Joseph, of sound mind.
    The surrogate confirmed the report and made a decree of distribution in accordance with it.
    Requests for findings of fact were submitted in due time by the contestants to the referee, but he did not make any response to any of them, otherwise than by his regular report in which no reference was made to the requests.
    
      R. H. McClellan, J. K. Long, special guardian, and George Day, for app’lts; Orin Cambell, for resp’t.
   Lakbok, P. J.

The main question presented by this appeal is whether the final accounts of Joseph Hicks, one of the executors of the last will and testament of his father^ Wiliam Hicks, should be surcharged with the sum of $8,592 or $7,160 or any less sum.

Joseph Hicks does not deny receiving from the testator the sum of $7,160 or its equivalent, but alleges that his father gave him this sum as an advancement upon his agreement to pay to him the interest upon it during his father’s life in monthly payments of $35.80, which payments he thereafter made, except as to certain months, the indebtedness for which he admits.

This claim of Joseph Hicks is sustained by the decree of the surrogate. The case is one of fact, and upon the testimony and the report of the referee the decree in this respect should be affirmed, unless it ought to have been found that at the time of the alleged advancement or gift, William Hicks was of unsound mind.

Much testimony was given bearing upon that issue. The alleged advancement to Joseph was made on or prior to May £3, 1882. A committee of the person and estate of the testator was duly appointed in November, 1882, upon an inquisition of a jury dated October, 21, 1882. This inquisition declared that “William Hicks, at the time of taking this inquisition is a lunatic and of unsound mind, * * * and that he has been in the same state of lunacy for the space of about three months last past.”

On the 23d day of May, 1882, William Hicks and Joseph Hicks went together to the office of Mr. Haynor, a lawyer, and requested him to draw an agreement between them wherein the advancement bjr the father to the son of $7,160 should be recited, and that in consideration thereof the son should pay the father $35.80 per.month during the father’s natural life. There is no doubt that the testator explicitly declared to Mr. Haynor that he had given Joseph this sum, and that for his part he did not wish any agreement, but Joseph did.

It seems to us that the testimony of Mr. Haynor settles the issue upon the alleged gift and advanceihent in favor of Joseph Hicks, and that it tends strongly to show that the testator was at that time of sound mind and free from restraint. To discuss the entire testimony upon this issue would be but to recast the briefs of counsel. The finding of the referee that he was then of sound mind is a satisfactory deduction from all the testimony.

The appellants allege error in that they submitted to the referee requests to find, which he disregarded, and made no response to any of them.

No doubt it was the duty of the referee to respond to these. requests. Code Civil Procedure, §§ 2546, 1023, 993. If this error prejudiced the appellants, the judgment should be reversed. But it did not. The proper responses to the requests would not have aided the appellants.

Haynor was an attorney-at-law, and the testator and his son, Joseph Hicks, together, went to him and stated the facts which they requested him to embody in an agreement. The communications so made were not privileged. Haynor is a competent witness to testify to them. He only discloses, by his testimony, the statements which each party openly made to the other. No suggestion of the betrayal of private confidence can be made. Hebbard v. Haughian, 70 N. Y., 55; Sherman v. Scott, 27 Hun, 334; Whiting v. Barney, 30 N. Y., 330.

The testimony tended to show that the testator discharged a mortgage which he held against the property of Joseph Hicks. The amount secured by his mortgage formed the larger part of the sum in controversy here. The subsequent declarations of the testator, that he had given Joseph the amount, were competent to characterize the transaction. Doty v. Willson, 47 N. Y , 583: Gray v. Barton, 55 id., 68.

The fact that Joseph agreed to pay to his father interest upon the gift at the rate of $35.80 per month, does not invalidate it as a gift. Doty v. Willson (supra).

It was plainly competent for him to part with his money upon such terms as both parties agreed to, and it was immaterial by what name the transaction is called. Say that he purchased an income in the nature of an annuity, payable in monthly installments, and it is equally valid as a defense.

The surrogate properly construed the fifth clause of the testator’s will.

The fifth clause reads, I give and bequeath to all my grand children and great-grand children that may be living at the time of my decease, and to Alvah Seaman, the stepdaughter of my son William, if living at the time of my decease, all the rest, residue and remainder of my estate, to be divided equally between them, share and share alike, except, that in the division, I give and bequeath to my grand daughter, Grace Hicks, daughter of my son John, three extra shares of said residue and remainder of my-estate.”

Including Alvah Seaman and Grace Hicks, there were twenty-six members of the above class living at' the testator’s death. The surrogate construed this clause as if the testator had said: Divide my residuary estate into as many shares as there áre legatees, plus 3, and give Grace four of such shares, and each of the other legatees one share.”

The propriety of this division does not appear to be debatable.

No other points are urged by the appellants which it is necessary to discuss.

The decree should be affirmed, with costs against the appellants; the costs may be charged, ratably, against the shares. The special guardian, however, may first have costs of this appeal out of the entire fund.

Order to be settled by Landon, P. J.

Fish and Pajrker, JJ., concur.  