
    In the Matter of the Judicial Settlement of the Account of Peter Rose as Executor of the Will of Joseph Rose, Deceased.
    
      (Surrogate's Court, Westchester County,
    
    
      Filed December 18, 1887.)
    
    1. Executor—Accounting—-Disbursements—Evidence—Code Oiv. Pro., sec, 3734.
    Code Civil Procedure, section 3734, which provides that it should not be competent for an executor by his own oath or that of his wife to prove items of credit for payments exceeding twenty dollars, made to persons who are dead or cannot be found (the vouchers for which have been lost or destroyed) may be waived by those for whose protection the said provision was intended.
    3. Same—What amounts to waiver oe.
    In case the party objecting to the amount himself calls and examines the executor as to such payments, there is a waiver of the provisions of said section. This rules also applies to a case of imperfect vouchers which - are rendered perfect by oral testimony of the executor enlisted by the contestants.
    3. Will—Construction oe.
    The testator, by his will, directed thé sale of all his real estate at such time and in such lots as would be to the best advantage, and that the executor invest the proceeds to the best advantage, and that the interest arising therefrom with as much of the principal as should be needed should be applied by him to the support of his wife and children until the latter should become of age, and then divide what should remain, etc. The executor erected a house on a parcel of land, which was afterwards sold, resulting in the loss of $650 to the estate. It did not distinctly appear by whom the sales and conveyance of the said land with the house was made. Held, that if the executor made sale, he was liable for the deficit, as the erection of the house was not authorized by the will, but if the beneficiaries sold the property their deed would convey a good title, and they would be deemed to have taken the land with the house upon it instead of the proceeds of the sale, thus ratifying the act of the executor in erecting the house.
    The testator died at Stony Point, in Rockland county, leaving him surviving Charlotte Rose, his widow, and two infant children, named Wallace and Emma. The will was admitted to probate in that county, and in 1882 this proceeding for the accounting by the executor was commenced, and on account of the disqualification of the acting surrogate and the district-attorney, the matter was sent to the surrogate of Westchester, for a determination under Code Civil Procedure, section 2485. Prior to the commencement of this proceeding, the widow had married, and during its pendency the testator’s son Wallace died intestate, leaving neither widow nor child, but his administrators afterwards became parties to this proceeding. The executor sold a parcel of real estate left by the testator for $3,500, of which $2,000 was paid in cash,and the rest by the mortgage. The widow refused to sign the conveyance to the purchaser, and instituted proceedings to recover her dower. The purchaser refused on account of said proceedings to pay interest on the mortgage, which was afterwards for-closed, and the premises sold for $1,800. On the accounting, some of the vouchers for the payments alleged to have been made by the executor were lost, and others were imperfect. The executor was put upon the stand as a witness by the contestants, and he was fully examined as to these payments.
    The other facts are stated in the opinion.
    
      Charles C Suffern and Alonzo Wheeler, for executor; H. B. Batchelder, for contestants; W. M. Barton, special guardian.
   Coffin, S.

It is provided by § 2734 of the Code, that an executor may be allowed items of credit for payments exceeding twenty dollars, if he proves, by his own oath, or otherwise, that he took no vouchers^ or that the vouchers have been lost or destroyed, by proving the payments by the persons to whom they were made, or if they be dead or cannot be found, by any competent evidence, other than his own oath or that of his wife. The rigid rule of the Revised Statutes (2 R. S., 92, §§ 54, 55) is thus relaxed, Under the present law, in a case of an accounting where no opposition was interposed, it would be incumbent on the surrogate, in case of lost vouchers, to exclude the testimony of the executor as to the alleged payments. The rule is stringent, that beneficiaries may be protected from possible dishonesty of those acting in fiduciary capacities. So, his oath would be excluded, in case of a contest, on objection made, to sustain the letter as well as the policy of the statute. But, where the contesting party himself calls and examines the executor as to such payments, a different question arises. Is he not bound by his own act? It is very well settled that a party may waive a statutory, and even a constitutional, provision made for his benefit, and after doing so, he cannot afterward ask for its protection Lee v. Tillotson, 24 Wend., 337; Embury v. Conner, 3 N. Y., 511; Matter of Cooper, 93 N. Y., 507.

Hence the evidence of the executor, concerning payments made by him where he took vouchers, which are lost, is binding upon the contestants. This rule will also apply to the case of imperfect vouchers, which are rendered per-feet by the oral testimony of the executor elicited by the contestants. * * *

On the foreclosure sale of the Mackey mortgage, the executor is undoubtedly correct in charging himself with the amount received by "him, after deducting the cost of foreclosure. If he were to be charged with the $1,800, for which the property was sold, he would be entitled to credit for the amount of "the costs and expenses of the sale.

So far as the items of the account are concerned, they are allowed with the above exceptions. Under the circumstances the executor does not appear to be fairly liable for any more interest than he has charged himself with.

But there is another, and a serious matter to the parties concerned, if allegations made by counsel are correct. The testator, by his will, directed a sale of all his real estate, at such time and in such lots as would be to the best advantage, and that the executor invest the proceeds to the best advantage, and that the interest arising therefrom, with as much of the principal as should be needed, should be applied by him to the support of his wife and children until the latter should become of age, and then divide what should remain, if his wife continued unmarried, equally between her and their two children, and if she married it was to be divided equally between the children. In 1869 the executor sold to Mary Mackey, wife of David Mackey, one parcel of .real estate for $3,50(3, of which $2,000 was paid in cash, and a mortgage was given for the balance. The executor erected a small dwelling-house on another parcel of land of some five or six acres, of which the testator died seized, at a cost of about $1,400, which he paid out of the said sum of $2,000, part of the proceeds of sale of the parcel sold to Mrs. Mackey. The widow and children lived in the new house for a year or two, when they left it, and it was rented to parties from whom little rent was realized

Ultimately, these few acres, it is alleged, were sold, presumably by the executor, on which he had erected the house, for $800,—thus causing a loss to the estate of $600, beside the value of the land. Of that value there is no evidence. Taking into consideration the facts that only one acre of it was cleared land, the rest being wooded, producing but scanty crops of any kind, scarcely yielding enough to pay for the labor, and situated in the town of Stony Point, among the fooDhills of the Dunderberg, it could have had but a small market value without the new dwelling-house. Still it must have had- some value—say $50. This would make the whole loss to the estate $650. As the erection of the house was not authorized by the will, the executor is liable for this loss, if the allegations in regard to the sale be true. If they are not, then it would seem that the land still belongs to the estate as legal assets, as the will directed the executor to sell it, and thereby operated an equitable conversion.

If, however, it were sold and conveyed by the widow and children, or child, after the latter became of age, it indicated clearly that they elected to reconvert it into land. As no One interested in the estate could be affected by such election, other than themselves, they had an undoubted right to make it. 2 Jarm. on Wills, 5th Am. ed., 188 ; Prentice v. Janssen, 79 N. Y., 478. And their deed would convey a good title. But in thus electing to take the land with the house upon it irfstead of the proceeds of its sale, and selling it themselves, they sanctioned and ratified the act of the executor in erecting the house, and cannot, therefore, seek to hold him liable for any loss consequent upon a violation of duty in that- regard.

The facts relating to the sale of the last parcel of land, are not disclosed with sufficient distinctness to warrant any decision other than alternative. The principles above enumerated may be applied in either case to the actually existing facts, and which must be well known to the parties.

The executor appears to have acted in good faith throughout, and no valid reason is discovered to warrant the withholding of his commissions. Both parties are entitled to costs out of the fund, if any remain, after the deduction of the commissions.

Decree accordingly.  