
    (112 App. Div. 195)
    In re DWYER.
    (Supreme Court, Appellate Division, First Department.
    April 6, 1906.)
    Administrators — Accounting—Trust Funds.
    Intestate deposited certain funds in a bank to tbe credit of himself, in trust for S. He, however, drew out the accrued interest yearly and retained the bank book in his possession. S. died before the intestate. Accountant, having been appointed administrator of both her estate and that of intestate, withdrew the fund from the bank as intestate’s administrator. Held that, accountant having received the fund as administrator of intestate, he . was bound to account therefor to his successor as such administrator, leaving the ownership of the fund for determination on final accounting, as provided by Code Civ. Proc. § 2731.
    Appeal from Surrogate’s Court, New York County.
    Judicial accounting by James A. Dwyer, as administrator of the estate of Patrick Sheedy, deceased. From a surrogate’s decree settling the accounts, the administrator appeals.
    Affirmed.
    Argued before O’BRIEN, P. J., and INGRAHAM, McLAUGHLIN, CLARICE, and HOUGHTON, JJ.
    Leonidas Dennis, for appellant United States Fidelity & Guaranty Co.
    Edward J. McGuire, for appellant Garveys.
    Charles Goldzier, for 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 admifiistrator filed his accounts, to which objections were filed, whereupon the surrogate sent the account to a referee to hear and determine all questions arising upon the settlement thereof. The referee reported, settling the accounts. He found that there was a balance of $34,324.-44 in the hands of the administrator. To this report the administrator filed exceptions, and, these exceptions coming on to be heard, the surrogate modified tbe 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; and from that decree the accounting administrator appeals.

The question raised upon this appeal relates solely to 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. 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 October, 1903; that he qualified as such administrator, and was at the hearing duly qualified, appointed, and was acting as administrator of that estate. Tt was further conceded that the bank book 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 bank book 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 as 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 disapproved of by the surrogate, and he held that the right 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 intestate’s sister, at one time know 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 a claim to.this fund, he being at the same time administrator of Patrick 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. Section 2731, Code Civ. Proc. 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 to whom 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.

All concur.  