
    In the Matter of the Application of Edmund S. Wilson, as Administrator, etc., of Mary A. Wilson, Deceased, for Authority to Lease, Mortgage or Sell the Real Property of Decedent for the Payment of Her Debts. Edmund S. Wilson, Individually, and Andrew F. Wilson, Appellants, v. Lydia V. Marryatt and Others, Respondents.
    
      Claims against decedents’ estates—proof of declarations of the deceased that she did not owe the claims is inadmissible and requires a reversal.
    
    Where sons make a claim against the estate of their mother for moneys advanced to her for the construction of a house, and, there being no sufficient personal estate, petition for the sale of her real estate, and, upon the trial of the matter, the court admits testimony to the effect that the mother had talked about having saved money with which to build; that, when the house was completed she had said it was free, except for a mortgage held by another person, and that the witnesses had ‘ ‘ never heard her say she was indebted to any of the boys ”— the purpose of such evidence being to afford an inference that the sons’ claims against the mother were unfounded — the claimants are necessarily prejudiced by its admission, and, under section 2545 of the Code of Civil Procedure, the decree of the surrogate against the claimants should be reversed.
    Appeal by the claimants, Edmund S. Wilson and another, from so much of a decree of the Surrogate’s Oourt of the county of Kings, entered in said Surrogate’s Court on the 24th day of January, 1896, as rejected the claims of the appellants and awarded costs to the contestante, and also from an order entered in said Surrogate’s Court on the 30th day of January, 1896, modifying said decree.
    
      Benjamin Estes, for the appellants.
    
      Charles M. Stafford, for the respondent Marryatt.
   Bradley, J.:

By the petition it is alleged that at the time of her death the decedent was indebted to Edmund S. Wilson in the sum of $1,000 and interest for money loaned by him to her, and that Andrew F. Wilson had presented to the petitioner a claim of $691 for money loaned by him to her; that as she left no personal estate with which to pay the debts, the prayer of the petitioner was for direction to dispose, for that purpose, of the real estate of which she died seized. The matter was referred to a referee to take proofs, etc., and report to the Surrogate’s Court. The referee having done so, whereby he concluded that the alleged claims be rejected, his report was confirmed and a decree entered accordingly. In the meantime the real property of the deceased had been sold, pursuant to judgment in an action of partition, and by an order of the court the net proceeds of the sale were to remain on deposit pending the proceedings in this matter.

The contest is between brothers and sisters, the children of the decedent. And it is contended on the part of the claimants that there was error -in the determination of the facts as presented by the evidence, and in the exclusion and reception of evidence. It appears that two houses were erected by Mrs. Wilson in her lifetime, one on Madison street in the city of Brooklyn, and the other at Newtown in the county of Queens, and that her son Robert B. Wilson was the builder of them.

The alleged claim of Edmund S. Wilson was for money loaned by him to his mother to enable her to build the house on Madison street, and on his behalf evidence was given by his brother, Robert B. Wilson, to the effect that Edmund S. loaned his mother $2,000, which came into the hands of the witness to use, and which was used for such purpose, and that $1,000 of that sum was afterwards repaid from the proceeds of a loan obtained and secured by her mortgage on the premises. His evidence and that of Edmund S. Wilson tended to prove that the decedent borrowed of her son Andrew F. Wilson the sum of $691, which also went into the hands of Robert B. Wilson, and was used by him in the construction of the Newtown house for his mother. There was also some other evidence which the referee and court could have' treated as corroborative of the fact that those loans had been made and that the moneys were appropriated to the uses before mentioned by Robert B. Wilson. There were some circumstances made to appear bearing upon the credibility of Robert B. as,a witness, which, it is ■claimed, permitted the referee and court to conclude that he was not entitled to credit, and in view of the interest of the claimants the effect which should be given to this evidence was a question for the determination of the court below.

The referee in his opinion, among other things, said: “ From the testimony I am inclined to hold that Mrs. Wilson never entered into any agreement with her sons Edmund and Andrew whereby she became legally bound to repay them either, with or without interest, for money they or either of them advanced for the Madison street or the Himrod street house. Bruce (Robert B.) had lived with his mother until her death. Frank (Andrew F.) had no other home when not on the road, and Edmund also lived with his mother until his marriage. Edmund and Frank were both making money.” This is some indication that the referee entertained the view that the relation of claimants to the deceased was -such that if they supplied any money to aid in the erection of the houses it was reasonable to suppose that it was not with any purpose to create the liability of their mother to repay, but was in the nature of gifts for her benefit. And he further adds in his opinion that: “ It nowhere appears that the mother ever agreed to repay Edmund or Frank principal or interest.” The question for trial and to be determined was, whether those sons loaned the alleged sums of money to the decedent, and upon that question (assuming that they advanced the money) the relation between them and her was entitled to some consideration.

Robert B. Wilson testified that in an interview with his mother, when talking about building the Newtown, Himrod street house, she had remarked that she could do nothing without money, and he said he would speak to Frank and see what he said. That following this, when the three were together, Frank (Andrew F.) said : “ Mother, I will loan you the money. * * * Bruce will take what is necessary to build it and charge it to me.” The witness further testified that he had Frank’s money and did so use some of it. The offer made to prove by him what amount of his brother’s money he used under that arrangement was excluded, as was also the offer'to prove by Andrew F. Wilson that he advanced $691 to his brother B-obert B. to be used in the construction of the house. This was excluded and exceptions taken to the rulings. Much incompetent evidence, consisting of testimony given by the contestants of the ex parte declarations of the decedent and as to what they had not heard her say, was received, against the objections and exceptions of the counsel for the claimants. Such testimony was to the effect that the mother talked about having saved money with which to build, and that she had some; that the witness never heard her say she was indebted to any of the boys; that she also heard her say she had money in different places in the house where she resided; that when the Madison street house had been built she said it was free except the $3,000 mortgage to Frost; that the witness had never heard her mother say she was indebted to Andrew F. or Edmund 8. Wilson ; and that she told the witness about having loaned money to Efiie Moody. The other contestant testified that she never had heard her mother, after the building was completed, say anything about any indebtedness to Edmund 8. and never had heard her say she was indebted to Andrew F. for any money used in building the New-town house. All this evidence was clearly inadmissible against the claimants. (Brown v. Mailler, 12 N. Y. 118; Weller v. Weller, 4 Hun, 195 ; Graves v. King, 15 id. 367.)

The remaining question is whether the errors in the exclusion and reception of evidence can be disregarded without prejudice to the claimants within the meaning of the statute which provides that “such a decree or order shall not be reversed for an. error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby.” (Code Civ. Proc. § 2545.) It may be observed that the question whether the claimants had loaned money to the decedent and she was indebted to them therefor, was a contested one of fact, in support of which claims there was some evidence. The purpose

of the evidence of the declarations of the decedent (in view of the fact that the witnesses were her daughters), that she had never said to them or either of them that she had borrowed any money of the appellants or owed them anything, would seem to have been to afford the inference that she was not indebted to them and that their claims were unfounded. It cannot be seen that it may not have had such or some effect upon the result. In Matter of Will of Smith (95 E. Y. 516) it was said by Judge Andrews that, under that section, when the court of review finds that incompetent evidence has been received or competent evidence rejected, it becomes its duty to determine whether the error prejudiced the party against whom it was committed. “ If it appears to the court that it did not, then its duty is plain. If, on the other hand, the evidence erroneously admitted or rejected was important and material, and the court cannot say that, notwithstanding the error, the judgment is right, or if it entertains a reasonable doubt upon the subject, then we conceive a case is presented where the party excepting was necessarily prejudiced within this section.” By the application of that rule the judgment of the Supreme Court and that of the surrogate were reversed, And to the same effect was the rule in the like result applied in Matter of Will of Snelling (136 N. Y. 515). Within the construction and effect of that section the claimants must be deemed to have been necessarily prejudiced by such rulings. The case In the Matter of Miner (146 E. Y. 121) is plainly distinguishable from those cases and has no necessary application to the present one.

The provisions of the decree of the surrogate appealed from should be reversed, with costs in this court to abide the final award of costs, and the matter-remitted to the Surrogate’s Court to proceed therein.

All concurred.

Decree, so far as appealed from, reversed, with costs to abide the final award of costs, and matter remitted to the Surrogate’s Court to proceed therein.  