
    William A. Bloodgood, Adm’r, &c., vs. William S. Sears.
    The mistake of one party, and the fraud of the other, is quite as good cause for vacating the settlement of a claim as a mutual mistake.
    Where a party having a claim against an. estate, for services rendered, was induced to make a settlement pf such claim, with the administrator, by. an. erroneous statement contained in the inventory of the estate, whereby a large portion of such estate was suppressed, and the administrator violated his duty, in concealing that part of the estate so suppressed; Held that this was a proper case for vacating the settlement.
    A claim presented to an administrator which embraces charges for services rendered to the administrator after the death of the intestate, and also charges for services rendered to him as administrator of another deceased person, should not be allowed by a referee appointed by the surrogate.
    A contract made by an administrator does not bind the estate, or create a lien on the assets thereof, in his hands.
    APPEAL from a decree of the surrogate of the county of Yew York, made on the final accounting of William A. Bloodgood, administrator of John M. Blood-good, deceased.
    The said administrator having filed his account with the surrogate, and it appearing that William S. Sears, a creditor, had a claim against the said estate, which claim was disputed by the administrator, it was ordered that said claim be referred to David R. Jaques, Esq., as referee, to take testimony as to the facts in relation to said claim, and to hear and determine the same, and to make report thereon, subject to the confirmation of the surrogate. And it was also further ordered, that the said accounts be referred to the said David R. Jaques, Esq., auditor to examine, and he was thereby appointed such auditor. Said referee and auditor, subsequently made his report to the surrogate, by which he found the following facts:
    
      First. William S. Sears, the claimant, on and after July 28, 1838, from time to time, in the lifetime of the said John M. Bloodgood, performed for him, and upon his employment, certain legal services, for some of which services he paid the claimant at different times snms amounting in all to the sum of $425.
    
      Second. John M. Bloodgood died June 17,1851, leaving certain of such services unpaid for, which services then remaining unpaid were reasonably worth the sum of $1,260.46.
    
      Third. After the death of John M. Bloodgood, the claimant, upon the employment of the said administrator, performed for him certain other legal services from June 19, 1851, to January 19,1852, which are set forth in the same exhibit, and which were reasonably worth the sum of $531.89.
    
      Fourth. On or about July 6, 1851, the claimant rendered certain other legal services for the said William A. Bloodgood, as administrator of the estate of Mary Bloodgood, deceased, which are also set forth in the same exhibit, and were reasonably worth the sum of $150.
    
      Fifth. Payments were made by the said William A. Bloodgood, as administrator of the said John M. Blood-good, to the claimant, as follows: January 31, 1852, $300 ; February 24, 1852, $250; May 17, 1854, $250, on account of such services.
    
      Sixth. On the 19th day of October, the said William A. Bloodgood, as administrator of the estate of John M. Bloodgood, and acting in his trust as such administrator, returned, on his oath, an inventory of the estate of said deceased, which inventory was filed in the office of the surrogate of the county of New York, on the 19th day of October, 1852, and by which the assets of his estate were represented as of the total value of $364.50, and subsequently, by a supplemental inventory dated February 20, 1864, additional assets amounting to $21, were returned. The inventory filed October 19, 1852, contained a memorandum in the words following: ‘ ‘ An undivided interest in the estate of Abraham Bloodgood, deceased, which is yet in the hands of the executors of that estate unset-tied, and which, is subject to debts due the estate of Abraham Bloodgood, deceased, as has been assigned to William A. Bloodgood, amount, if anything, unknown.” The said inventory did not include any portion of the interest of said deceased in Ms father’s estate. At the time of filing said inventory, the administrator knew, and had known since March, 1850, that there were ample assets of the estate of John M. Bloodgood to pay the debts; that the personal residue of Abraham Bloodgood, named in said memorandum, amounted to about $100,000; that the estate of John M. Bloodgood was then entitled to an equal undivided fifth thereof and of the income; that about one half thereof was then producing income, and that the estate of said John M. Bloodgood was also entitled to a share of the real estate of said Abraham Bloodgood, and of its income, of wMch it was then in the receipt. The assignment mentioned in said memorandum, was a mortgage executed by said deceased to said William A. Bloodgood on the 5th day of May, 1843, of a farm at Flushing, Queens county, and of said undivided interest to secure the sum of $3,000; but the value of said interest was largely in excess of that sum; and there were, on the 19th day of May, 1870, in the hands of said administrator, and of John M. Bloodgood’s estate funds to the amount of $11,033.94.
    
      Seventh. On the 13th of November, 1855, the said William A. Bloodgood,- as admimstrator of the estate of John M. Bloodgood, deceased, paid to the claimant on account of Ms services to said estate, the sum of $53.50, and on the 19th of December, 1855, he paid on account thereof the further sum of $100, which several payments were declared to be without prejudice to the remonstrance and protest of said administrator to the charges contained in the claimant’s bill as presented, and without prejudice to any right or claims he might have or make on the settlement of said account, wMch, as to the amount, was then disputed by said admimstrator.
    
      
      Fighth. The account between the claimant and said administrator, was not then, nor has it since, been stated or liquidated as to amount.
    
      Ninth. On or about the 5th day of July, 1856, the claimant agreed to receive the sum of $500 in full settlement of his claim for his services to, and in full of his demands against the estates respectively of John M. Bloodgood, deceased, and Mary Bloodgood, deceased, and accordingly on that day the said sum was paid to him by William A. Bloodgood, as administrator, &c., of John M. Bloodgood, deceased, and as administrator &c., of Mary M. Bloodgood, deceased, and received by him in full of said demands respectively.
    
      Tenth. The claimant was induced to make such settlement of his claim against the estate of John M. Blood-good, by the incorrect statement contained in said inventory of the estate of John M. Bloodgood, deceased, which statement was wholly erroneous, and incorrectly represented the condition of the said estate.
    The referee and auditor found as conclusions of law:
    
      “First. The settlement of the claim of William S. Sears, made Jrdy 5,1856, does not conclude him and bar his valid claim against the estate of JohnM. Bloodgood, deceased, because the same was induced by mistake of fact as to the condition of the decedent’s estate, which mistake arose from the failure of said administrator to correctly set forth and exhibit a' full and accurate statement by inventory of the estate of his intestate, without concealment or omission, which his duty as trustee of the estate for creditors and next of kin required him to make.
    
      Second. There is due to William S. Sears, the claimant, from William A. Bloodgood, administrator of the estate of John M. Bloodgood, deceased, the sum of four hundred and eighty-nine dollars and 'eighty-five cents, and an order should be entered in this matter directing the said administrator, out of any moneys in his hands belonging to the estate of said deceased, to pay to William S. Sears, the claimant, the said sum, and also to pay the costs and expenses of this proceeding.”
    Exceptions were taken to the report of the referee and auditor, by both parties, which, on argument, were overruled and disallowed by the surrogate, and a decree was entered ordering, adjudging and decreeing that the said report be ratified and confirmed, in all things; and directing the payment, by the administrator, out of any moneys in his hands belonging to the said estate, unto the said claimant, William S. Sears, the said sum of $489.95, with interest thereon since the 4th day of February, in the year 1871, and the sum of $85, the referee and auditor’s fees on the said reference, paid by the said William S. Sears, on taking up the said report, with the interest thereon since the 23d day of January, in the year 1871; and it was further ordered, adjudged and decreed, that said administrator do also pay, out of any money in his hands of the said estate, unto the said claimant, William. S. Sears, the further sum of $150, as an allowance made to him by the said Surrogate, in lieu of his costs for his services in prosecuting the said claim against the said administrator, with the interest thereon from the date of such decree; which' sums, with the interest thereon, amounted to the sum of $773.44, at the day of entering the decree. And that the said claimant, William S. Sears, have execution therefor, and such other proceedings against said administrator as he might think proper to take, to compel the payment of the said amount, with the interest thereon from the date of the decree.
    From this decree, both parties appealed to this court.
    
      Jno. E. Parsons, for Bloodgood.
    
      Wm. S. Sears, in person.
   By the Court, Gilbert, J.

No question was made by either party respecting the jurisdiction of the surrogate in the proceedings brought up for review. We assume, therefore, that proceedings are authorized by section 6, chapter 359 of the laws of 1870. The .referee finds that Mr. Sears was induced to make the settlement of his claim by an erroneous statement contained in the administrator’s inventory of the estate of the intestate, whereby a large portion of such estate was suppressed, and that the administrator violated his duty in concealing that part of the estate so suppressed. The legal effect of the referee’s finding is, that there was a mistake on the part of Mr. Sears, and that which is equivalent to legal fraud on the part of the administrator. We cannot say that this finding is unsupported by the evidence; for the testimony of Mr. Sears is certainly sufficient to sustain it. The mistake of one party and the fraud of the other is quite as good cause for vacating the settlement as a mutual mistake. (Welles v. Yates, 44 N. Y. 525.) The case shows, however, that the sum of $500, which was paid to Mr. Sears on the occasion of the settlement in'question, was'sufficient to extinguish all his valid claims against the administrator. When that payment was made, the amount due him from John Blood-good’s estate was only $460.46. The claim presented by Mr. Sears embraced charges for services rendered to the administrator after the death of the intestate, and also charges for services rendered to him as administrator of the estate of another deceased person, namely, Mary Bloodgood. These have been improperly allowed by the referee. The surrogate has no jurisdiction to allow such claims. A contract made by an administrator does not bind the estate, or create a lien upon the assets thereof in his hands. (Austin v. Munroe, 47 N. Y. 360.) And it is scarcely necessary to say that there is no ground upon which the estate of John M. Bloodgood can be charged for services rendered to the administrator of the estate of Mary Bloodgood.

[First Department, General Term, at New York,

November 4, 1872.

Leonard and Gilbert, Justices.]

The order of the surrogate must therefore be reversed, . and the administrator’s exceptions allowed, with costs.  