
    Matter of the Proceeding for the Judicial Settlement of Account of Carlotta Suess, as Administratrix, etc., of Carl Suess, Deceased.
    (Surrogate’s Court, New York County,
    March, 1902.)
    Administrator — Liability on sale of a business — Profits — Burden of proof — V ouchers — Admissions of one since deceased as res gestae.
    Where an administratrix (since deceased) permits the saloon of her intestate, its good will and fixtures to pass into the control of her husband, she, or her estate, is chargeable as against the next of kin with its value and interest, and with the profits of the saloon if it was thereafter conducted in her interest.
    She is not chargeable with proceeds of the saloon which she never received or controlled nor with the gross receipts, as she must be allowed the necessary expense of conducting it.
    The actual or probable expense must be shown by those objecting to her account, as the burden is upon them to prove what the profits were.
    The rule requiring an administratrix to produce vouchers has no application- to ..moneys which were never moneys of the estate of her intestate.
    Her declarations that she had sold the saloon to her husband are admissible after her death as res gestee characterizing the possession of her husband, in so far as they are against her own interest and do not refer to any act of her intestate.
    Proceedings upon the judicial settlement of the account of an administratrix.
    Rose & Putzel, for accountant.
    O. B. Thomas, for contestants.
   Thomas, S.

A careful examination of the record satisfies me j that Garlotta Suess, as administratrix, surrendered and delivered the saloon, with its good will and fixtures," to Jacob Suess, at or before the time of her marriage to him, and that thereafter he was permitted by her to treat it as his own. She either sold the property to him for a consideration, or she gave it to him, and whether she did the one or the other her liability is the same. In order that she should be chargeable with the proceeds of the business it must appear that those proceeds were received by her, or were under her control, and the evidence does not justify a finding that this was the case. On the contrary, the evidence relied on by the objectants as to the amounts of the receipts is mainly, if not exclusively, the record of deposits by Jacob Suess in a bank to his own credit and subject to his own checks. This proceeding is not against Jacob Suess or his legal representatives, as such, and even if the property was acquired by him from the administratrix, with notice of the trust, without consideration or for a consideration moving personally to the administratrix, a decree cannot on that ground be rendered against the administratrix or her executors for moneys received'by him which never reached her hands. And, eveto. if an accounting could properly be required of the administratrix as to the profits of the business on proof, now unsupplied, that Jacob Suess acted as her agent with respect to its management, the measure of the recovery must be limited to profits, and on no just theory could she be denied all allowance for necessary expenses. On the report as made no deduction is made for rent, or for cost of supplies, or fo'r services of Jacob Suess or of his employees, or for the many other charges which must have been incurred to have secured so substantial a result in receipts. The theory that all receipts constituted assets, and that the administratrix can only be discharged as to any of them by the production of vouchers is untenable. The proceeds of beer purchased on the credit of Jacob Suess, or of Mrs. Suess, after the death of the decedent, were not assets of his estate, and were not constituted such assets by the fact that the saloon where the sales were made, with its fixtures and good will, were assets. For the value of such saloon, fixtures and good will, the administratrix was clearly chargeable. She was also chargeable with interest on that value. If she used it in carrying on a trade for her own benefit and realized profits, the parties in interest could demand such profits in lieu of interest. This is the attitude of the objectants in this proceeding. But they cannot recover the whole gross returns of the business. They are confined to profits, and the burden of proof rests upon them to establish that profits were obtained over and above all of the expenses of the business. If • such expenses are to be proved by vouchers or not at all, then the failure to produce such vouchers must result in the loss of the objectants, since the actual or probable expense of carrying on the business is a part of their affirmative case. The rule requiring vouchers in an accounting by an administrator has no application to such an issue. Estate of William Munzor, 4 Misc. Rep. 374; Kenyon v. Olney, 39 N. Y. St. Repr. 839. Unfavorable inferences might be drawn from the conduct of the accountants in resisting proof of expenses, but they could not be punished for this to the extent of charging them with the gross proceeds of all sales. The transfer of the saloon was made about May, 1878. The parties to it are dead. The declarations alleged to have been made by the deceased administratrix to the witnesses Snyder and Rose as to the fact that a sale had been made were parts of the res gestee, since they served to characterize the possession of Jacob Suess as being that of an owner and not an agent. In so far as they were against the interests of Mrs. Suess they may also stand, since ' they concerned her own act in making a sale, and did not refer to any act of the decedent, and she is dead. Livingston v. Arnoux, 56 N. Y. 507. Independent of those declarations we may safely assume that the payments shown to have been made by Jacob Suess for beer furnished to the saloon, and for other debts, were part of the consideration for the transfer to him., but the declarations are of doubtful value as fixing the amount of the debts of the decedent as the full measure of the consideration, and they do not purport to exclude all benefits received by Mrs. Suess personally. One item of payment was $639.75 for beer furnished to the administratrix during the short time that she -carried on the business after the death of the decedent. This was, presumably, the wholesale price of the beer sold by her at retail, and we can assume that the business was sufficiently profitable to cover its cost. She will, therefore, be charged with this sum, together with $14.50, shown to have been on deposit to the credit of the decedent, malting $654.25. In view of the simplicity of the saloon and its fixtures, and in the light of all of the testimony as to its value, I am of opinion, and will find as a fact, that it was reasonably worth at that time no more than was paid by Jacob Suess, including the sum paid on the debt incurred by the administratrix,, already alluded to. In view of the great lapse of time and of the neglect of the parties to assert their claims more promptly, only simple interest oñ this amount front May 11, 1878, at six per centum per annum, will he charged. The deceased administratrix will be allowed commissions. Costs of both parties will be paid out of the estate. Submit a decree in accordance with this memorandum and settle the same on notice.

Decreed accordingly.  