
    In the Matter of the Estate of Louise E. Vandemark, Deceased.
    Surrogate’s Court, Ulster County,
    August 16, 1961.
    
      Hugh B. Elwyn for Vernon J. Vandemark and another, as executors. Archibald B. MacKennan for Beulah E. Hutchins, residuary legatee. Bichter & Werbalowshy (Seymour Werbalowshy of counsel), for Byron C. Vandemark, as an individual.
   Francis X. Tucker, S.

On the judicial settlement of the executors ’ accounts Beulah E. Hutchins, a sister of the coexecutors and a residuary legatee, seeks to enforce payment of a check given by Byron 0. Vandemark, one of the executors, to Louise E. Vandemark, the deceased, during her lifetime.

The testimony indicates that on or about December 14, 1954 Byron 0. Vandemark delivered the check in the amount of $1,200 to his mother in payment of a mortgage she held upon real property he was selling. She died on September 16, 1955 without having presented the check for payment. The check was not included as an asset of the estate at the time the tax proceeding was filed, and the testimony indicates that it was discovered sometime thereafter in a cabinet in the deceased’s home.

Byron C. Vandemark maintains that the deceased was in ill health at the time the check was delivered and continued in that state up to the time of her death. For her convenience and at her request she held the check with the understanding that he would provide her with certain necessities and small sums of money from time to time and credit them against the check. As evidence of this agreement Byron 0. Vandemark submitted proof to the effect that the check was not presented for payment, that certain expenditures were made in keeping with the agreement with the deceased, and memoranda was presented indicating a total of approximately $1,200. He also presented evidence that the deceased had no income from other sources and that the net withdrawals from her savings accounts during that period of time was $192. There was evidence as to her living expenses which generally indicated that her needs approximated the amount Mr. Vandemark claims to have, advanced. Beulah E. Hutchins produced no evidence to indicate other sources of funds or a reasonable explanation as to how the decedent could live approximately nine months on $192.

On all of the evidence Byron C. Vandemark has sustained the burden of establishing the payment of the check in accordance with his agreement with the deceased.  