
    In the Matter of the Judicial Settlement of the Accounts of Rachel Steward et al., as Administrators of Warner Steward, Deceased. Daniel Steward et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    1. Descent and distribution—Widow.
    The interest of the widow, in addition to her dower right, does not include the latter, or bring it into consideration in making the value upon which the duty of the appraisers to set apart personal property is dependent, or in ascertaining the amount to be set apart for the use of the widow and minor children.
    2. Limitation—Husband and wire.
    Where the wife of the decedent! more than twenty years before his death gave him money, asking him to keep it for her, without any special arrangement at the time he received it or afterwards as to its use, but there was evidence that it was contemplated that he would use it for his own purposes and pay her interest upon it, the decedent is a debtor and not a depositary for his wife, and the claim is barred by the statute of limitations.
    3. Executors—Accounting—Taxes.
    Where the administrator pays taxes upon the real and personal property, upon an assessment made and completed by the assessors prior to the death of the intestate, such payment is properly allowed upon his accounting.
    Appeal from a decree of the surrogate .upon • the principal settlement of the accounts of administrators.
    
      N. M. Allen, for app’lts Daniel Steward and Oadwell; B. A. Hall, for app’lt Rachel Steward; W. 8. Thrasher, for resp’t Ella, Dedia, and Manley Steward.
   Bradley, J.

Warner Steward died intestate in September, 1889, leaving surviving him a widow, Rachel Steward, and five-children, some of whom were minors. This proceeding for final judicial settlement of the accounts of the administrators was instituted by them in June, 1891. The appraisers, having set apart for the use of the widow and minor children personal property to the amount of $150, ascertained that the real estate of which th e decedent died seised was of the value of $5,825, in which the value of the widow’s interest (as given by statute), exclusive of her dower right, was $570.35. And because this, with $150 added, was less in amount than $1,000, the appraisers set apart for the use of the widow and minor children $429.65 of the personal estate. It is urged that this was not permissible, and that, as the value of such interest of the widow, with that of her dower right added, would produce a sum in excess of $1,000, it was not in the power of the appraisers in that connection to set apart any personal property for the use of the widow and minor children. The disposition of this question is dependent upon the construction of the statute as it existed at the time of the death of the intestate. By the section added to chapter 2 of part 2 of the Revised Statutes, entitled “Of title to real property by descent,” it was provided that:

“If the intestate shall leave a widow and a descendant or descendants, then such widow in addition to any interest to which she may be entitled under the preceding sections * * ' * shall be entitled to the use during her life, of an additional portion of the estate, not exceeding in value one thousand dollars.” Laws 1889, chap. 406, § 1.

The next section contained the provision that:

“In case the interest of a widow in the real estate of a deceased husband, in addition to her dower right, and together with said one hundred and fifty dollars shall be of less value than one thousand dollars, then said appraisers shall set apart, for the use of sucli widow or child and children, in the manner hereinbefore prescribed, personal property which together with said real estate, shall amount to one thousand dollars in value.” Id. § 2.

By the first section the widow was given an interest in the real estate left by her husband, in addition to her dower right therein, and such is her interest had in view by the provision in the second section, referring to the interest of a widow in the real estate “in addition to her dower right.” This is descriptive of the interest, the value of which, when, with $150 included, is less than $1,000, the residue of the latter amount is to be made up of personal property set apart for the use of the widow and minor children. It seems to me that such is the fair and necessary meaning of the provision. I am therefore unable to adopt the construction given to it in Re Daggett's Estate, 29 St. Rep. 864; Daggett v. Daggett, 37 St. Rep. 810. The interest of the widow, in addition to her dower right, does not include the latter, or bring it into consideration in making the value upon which the duty of the appraisers to set apart personal property is dependent, or in ascertaining the amount to be set apart for the use of the widow and minor chiL dren. The words, “in addition to her dower right,” are words of description and limitation of the widow’s interest which, with $150 added, in its relation in amount to $1,000, determines the extent in value of the personal property to set apart pursuant to such direction of the statute. This was properly done by the appraisers in the present case. The provisions referred to of the act of 1889 did not exist long. They-were repealed by Laws 1890, chap. 173.

The claim made by Rachel Steward against the estate is for $600, which her husband received from her upwards of twenty years before his death. She presents her claim in form as a deposit of that amount of money with the intestate. The objection was made that the claim was barred by the statute of limitations. If the husband was the depository of the money as such, the statute is no bar to the claim. Boughton v. Flint, 74 N. Y. 476. The evidence of the person who paid the money to the claimant is that lie handed it to her, and that “she handed it to her husband, and told him to take care of it;” that he took the money, and told her he'“would pay it out toward his lands.” He never repaid the money to her. It appears that on several occasions( and up to near the time of his death, he stated that he had had the money, and intended to pay her. And there is evidence that on an occasion in 1881 he received from a person a sum of money in excess of $600, in the presence of his wife, and passed it across the table to her, and requested her to take it in payment of the money he had from her, and that she told him to keep the money until she called for it. On his further examination the witness testified that the intestate laid the money on the table, and said to his wife, “Take that toward what I owe you.” The witness could not say that she had her hands on the money. The person who paid the money testified that the decedent said to his wife, “You take this money on what I am owing you,’ and she said, ‘I don’t want it,’ and he took the money.” This witness did not recollect that' Steward said he wanted his wife to take it on what he was owing her. There does not seem to have been any special arrangement, at the time he received the $600 from his wife or afterwards, to keep or invest it for his wife; and there is evidence to the effect that it was contemplated that he would use'the money for his own purpose, and pay her interest upon it. While there may be some evidence to permit the inference that the husband received the money as depository of it for his wife, the conclusion of the surrogate that the element essential to a deposit was wanting in the transaction was fairly warranted by the evidence, and that, therefore, the allowance of the claim was barred by statute. Sheldon v. Sheldon, 133 N. Y. 1; 44 St. Rep. 260; Mills v. Mills, 115 N. Y. 80; 23 St. Rep. 604. The present case furnishes an instance where the statute of limitations is made available to bar a claim after the death of a debtor who, up to the time of his death, recognized his liability, and repeatedly promised to pay it, and who, on the day preceding his death, when he was without hope of living much longer, expressed his desire that it, with interest, be paid from his property.

Several objections are made to the accounts as rendered by the administrators in the proceeding, and some exceptions are taken to the rulings or conclusions of the surrogate in that respect. It seems that the oats, corn, hay, and straw on the premises at the time of the death of the intestate were of the value of $211.50. This was fed out on the farm, and the surrogate charged the administrators with one-half of that amount. The evidence on the subject was somewhat vague as to what portion of it was used for the stock belonging to the estate, but we are inclined to think the disposition made of the question was permitted. There was a payment made to one of the sons of the decedent for taking care of the property after the death of his father, for a portion of which sum so paid to him the administrators were allowed credit. In this there was apparently no error. They also paid a small sum for insurance upon the buildings and personal property on the premises. How much for each does not appear. While their right to pay it as to the realty may be questionable, we think there is no occasion upon the evidence to disagree with the views of the court below on the subject. Herkimer v. Rice, 27 N Y. 163; Clinton v. Insurance Co., 45 N. Y. 454. The administrators paid some taxes upon the real and personal property upon an assessment made and completed by the assessors prior to the death of the intestate. His liability to pay the tax levied upon the assessment was fixed. Mygatt v. Washburn, 15 N. Y. 316; Clark v. Norton, 49 N. Y. 243; Boyd v. Gray, 34 How. Prac. 323. There was ño error in allowing them credit for the amount so paid. Without specifically referring to other questions raised by the appellants, we think they are not such as to fairly require the direction for a further accounting by the administrators.

The decree of the surrogate’s court should therefore be affirmed, with costs of this appeal to the respondents, payable out of the estate.

All concur.  