
    William T. Coale, Respondent, v. William T. Coale and William V. Simpson, as Executors, etc., of Jane A. Dwyer, Formerly Jane A. Tamajo, Substituted for the Farmers’ Loan and Trust Company, as Temporary Administrator of the Estate of the Said Jane A. Dwyer, Deceased, Appellants.
    
      Glaims against a decedents éstate —findings, when not disturbed on appeal.
    
    Where there is evidence to support the findings of a referee or of the trial'court the Appellate Division is not justified in - disturbing such findings unless they are against the weight of evidence.
    Evidence considered and held to establish the validity of claims aggregating $8,309.08 presented against the estate of a decedent, by a man who acted as the decedent’s business manager at a salary of $1,800 a year, for moneys claimed to have been loaned by him to the decedent and to have been expended by him for the use of the decedent.
    Van Brunt, P. J., and Ingkraham, J., dissented.
    Appeal by the defendants, William T.. Coale and another, as executors, etc., of Jane A. Dwyer, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 4th day of August, 1899, upon the report of a referee.
    
      Lewis 8. Goebel, for the appellant Simpson.
    
      Eugene Lamb Richards, Jr., for the residuary legatee Hud-nut.
    • EEenry. B. Wesselman, for the respondent.
   O’Brien, J.:

The action was brought against the Farmers’ Loan and Trust 'Company, as temporary receiver of the estate of Jane A. Dwyer, deceased, to recover four claims made by the plaintiff against the estate. Subsequently, by an order of revivor, the action was continued against the plaintiff and others as executors, they having become such upon the probate of the will of the deceased. The claims, which aggregated $8,498.19, were to obtain (1) a balance alleged to be due on a demand note given by the deceased to the plaintiff for $7,000 and dated.April 17, 1890, with interest, less the amounts paid thereon with interest; (2) a balance on a demand note for $2,000, dated August 17, 1893, with interest, less payments thereon and interest; (3) payment of a check for $432, signed by the decedent, and dated July 2, 1895, but not presented for payment by the plaintiff before her death, which occurred August 15, 1895, and (4) reimbursement for $350 paid by the plaintiff August % 1895, for a hotel bill incurred by the deceased. With some slight changes in the sums demanded, the referee found in plaintiff’s favor upon all the claims, and held that he was entitled to recover of the estate $8,309.02. From the judgment entered upon the referee’s report, the defendants appeal.

We have presented upon this appeal purely questions of fact, and conceding, in view of the nature of the claims which are made against a decedent’s estate by one who to a considerable extent has been connected with its management, that they should be closely scrutinized and satisfactorily proved, there is still no difference in the rule to be applied in determining whether the questions of fact were rightly decided in the trial court. The rule, as we understand it, is that where there is evidence to support the findings of a referee or of the trial court, we are not justified in disturbing such findings unless they are clearly against the weight of evidence. The record before us furnishes ample testimony to support the findings of the referee, and though with respect to certain of the claims it might seem to us individually that the evidence is not as strong as we could wish, that is no reason for setting aside the referee’s conclusions, provided there is, as stated, sufficient evidence to support them. And with respect to all the claims, it must be remembered that a prima faoie case was established after the plaintiff had sustained the burden which rested upon him of proving in the first instance that he had parted with his money at the request and for the .benefit of the deceased. This burden, we think, he sustained, and there was no evidence given on behalf of the defendants which outweighed it. The defendants in fact relied almost exclusively upon probing the plaintiff’s testimony, and by arguments resting thereupon sought to deduce a refutation of- the claims made by him.

Particularly is this true with regard to the hotel bill of $350 which, as the receipt in evidence shows, was paid by the plaintiff on .August 2, 1895, in compromise of a bill first made for $374.89, .the evidence offered being all one way and consisting of the plaintiff’s own statement, corroborated by that of the hotel keeper to whom the sum was given, that the amount paid was on account of and for the benefit of the deceased. In refuting this claim and to overcome the probative force of such evidence, the defendants suggest that it is possible that, as the plaintiff from time to time had moneys of the deceased, particularly after her death about the middle of August; which moneys he received .as her manager in running her hotel, it might well be that the payment of this account was balanced by the receipt by him of other moneys. This suggestion, .however, is a mere surmise and conjecture, resting on no solid foundation ; and, as we have already stated, after the plaintiff had sustained the-burden of showing that he had made the payment, it was then incumbent upon those who disputed it to prove by way of defense, as was not done or even attempted, that he was in some way repaid Out of moneys belonging to the decedent.

What has just been said applies equally well to the claim represented by the check for $432 which the plaintiff testified was given him by the deceased during the month prior to her death.for expenditures he had made for her, which check he had. not presented for payment.

The more serious questions relate to the notes upon which the plaintiff seeks to recover. As to them he was subjected to a long and searching cross-examination, during which he apparently made every effort to give information as to everything connected with the business of the deceased as well as his personal affairs. Thus he submitted his savings bank book, and when asked if he minded telling where the checks were from, answered, “Not a bit. I am willing to tell you all that I can.” And when asked if he objected to leaving his book to be looked through with reference to the checks, said, “Oh, yes, we will leave them all.” Many of the checks he explained at length, and he gave such details as could be expected of a man who was charged with many duties in relation to various transactions. His explanation of the giving of the notes to him was that he had saved considerable ready cash from his earnings while in Mrs. Dwyer’s employ which he kept' in a safe, and Mrs. Dwyer, who trusted him and was interested in his advancement, preferred to borrow of him, from time to time, such moneys as she required, giving him the six per cent interest to help him along rather than raise the moneys by giving her bonds or other property as security to outsiders. Both the notes were identified as being signed by the deceased, and they bear indorsements of payments at various times, which payments, the plaintiff testified, were generally made to him in cash.

As to the note for $2,000 the explanation given was very complete. The plaintiff testified that Mrs. Dwyer went to Italy before interest on a mortgage came due and left a note in her favor for $3,000 which he was to collect and apply to that interest; that the ¡note was protested, and by taking what money he could get at the house and $2,000 of his own, he paid the $3,000 of interest and the note to him was signed upon Mrs. Dwyer’s return. Upon this note the plaintiff had indorsed two payments which he testified were made to him by the deceased of $500 and $100, dated respectively March 27 and July 10, 1895. As to this item, therefore, we think the evidence amply supports the conclusion of the referee.

Thus we come to the first note for $7,000 which was dated April 17, 1890. The plaintiff testified that he had advanced on this note only $4,000 individually, the balance of $3,000 he having borrowed from others; that his own money represented various small accounts which had accumulated and which the deceased had figured out and settled by giving the note, the memorandum used being thereafter destroyed; that Mrs. Dwyer had been interested in various enterprises, including a quarry and an ice company, and had lost con siderable, and he thought this $7,000 went into the quarry and the ice company. The note, he said, she had dated back a year in order to allow him interest. It also bears indorsements of payments, the plaintiff testifying that he Was in the habit of applying sums therefor with the knowledge and consent of Mrs. Dwyer. Those indorsements amount to $4,254, and two of them were credited after the death of Mrs. Dwyer. One of these the plaintiff afterwards turned over to the temporary receiver; but another, for $574, he allowed to stand, and it was not interfered with by the referee for the reason that, the plaintiff being executor, the result would be the same to the estate.

In opposing the plaintiff’s evidence, the defendants offered general and not specific testimony. Thus, Mr. Dwyer, who married the deceased in January, 1897, and who had testified that she had said to him “ my affairs are in the right shape and I have got one of the best men in the world to manáge for me, and I want you to become friends,” stated that immediately before the marriage, Mrs. Dwyer, upon his remarking that his affairs' were in bad shape, answered “if that is the only objection, I have property enough for both of us; ” that Mr. Coale was then called and she said, “ Mr. Coale, I want to state to Mr. Dwyer all my affairs and all my accounts up to date have been settled with you and everybody, and they aré there in that book and I am as comfortable as á bug in a rug,” and Mr. Coale said it was true. This witness further testified, “ it may have been an inducement, * * * I don’t knowI contracted this marriage finally.” The plaintiff denied that the alleged conversation took place.

The only other evidence offered by the defendants was to the effect that Mrs. Dwyer never had sums of money about her, from which it is sought to be inferred that she could not have made in cash the payments indorsed by the plaintiff upon the notes, and her bank account shows no such payments by check. In this connection the plaintiff testified that the: deceased was very careless in her accounts, and it is evident that the payments might have been made in cash as testified without others being informed thereof. And the argument that the plaintiff’s bank account does not show the receipt of those moneys is answered by the fact that he was accustomed to keep large amounts in the safe which he used to reloan when desired. The argument. that he could not upon his salary of $1,800 a year have possessed such sums of money to loan is also answered. His expenses he testified were no more than $200 a year, so he saved in ten years $16,000 while with the deceased, and, in addition, he says he made some $2,000 in the naphtha launch business. He has now in hand about $5,000, so that the total represented would be about $13,000, which is considerably within the $18,000.

It is not necessary, however, to explain how it is that the plaintiff could make this loan or be-possessed of these notes, and if there was no evidence furnishing such explanation that would be no proof that the claims do not exist. All that was essential was that the plaintiff should offer evidence sufficient to show that he had, as he alleged, advanced moneys and made expenditures upon the request and for the benefit of the deceased, and it was then the defendant’s duty to disprove the claims, or prove that the payments were made with decedent’s money. The note was identified and explained, and the defendants, after éxamination of all books and accounts, were linable to discredit it. Although the plaintiff’s proof may not be as complete or convincing as could be desired, it is, in our opinion, sufficient to support the conclusion of the referee, and as the latter is not against the weight of evidence adduced it should not be disturbed.

Upon the whole case, therefore, we think that the judgment entered in accordance with the referee’s findings should be affirmed, with costs.

Patterson and Laughlin, JJ., concurred ; Van Brunt, P. J., and Ingraham, J., dissented.

Ingraham, J. (dissenting):

Considering the relations that existed between, the plaintiff and the decedent, the fact that he had constantly in his hands large sums of money that he had collected as her agent, and the contradictions in his testimony, I do not think that the finding that there was anything due upon the promissory notes sought to be enforced should be sustained. The Statute of Limitations had run against these notes, but for the payments credited thereon, and there is not any satisfactory proof that these payments were made by the decedent or by her directions ; and I think much more satisfactory evidence should be presented before a confidential agent of decedent, occupying relations that this agent occupied, should be allowed to deplete her estate.

I think the judgment should be reversed.

Van Brunt, P. J„ concurred.

Judgment affirmed, with costs.  