
    In the Matter of the Judicial Settlement of the Account of Proceedings of Eliza J. Arkenburgh, as Executrix, and Oliver M. Arkenburgh, as Executor, etc., of Robert H. Arkenburgh, Deceased, Respondents. Robert H. Arkenburgh and Eliza J. Wiggins, Appellants.
    
      Bxeoutoo's claim, against his testator’s estate — testimony by the executor, involving a conclusion based on a conversation with the testator, is incompetent — scrutiny of an excautofs claim. • ■
    
    An executor having an individual claim against his testator’s estate is bound to establish it by legal evidence in the same manner as any other claimant.
    Where, upon the judicial settlement of an executor’s accounts, the contestants offer in evidence the testator’s account books, which were kept by the executor, who was the son of the testator, for the purpose of showing the executor’s indebtedness to the testator, testimony given by the executor on cross-examination in answer to a request to explain the items of the account to the effect that “Every item in the account on those pages represent moneys paid me for services rendered,” is inadmissible under section 839 of the Code of Civil Procedure, when it is manifest that the witness had in mind a conversation with his father upon which he based a claim against the estate.
    
      Semble, that an executor’s individual claim against the testator’s estate, supported only by his own testimony, should be very carefully scrutinized.
    Appeal by Robert H. Arkenburgh and' another, two of the legatees named in the last will and testament of Robert H. Arkenburgh, deceased, from a decree of the Surrogate’s Court of the county.of Rockland, entered in said Surrogate’s Court on the 30th day of December, 1899, settling the accounts of Eliza J. Arkenburgh and and another, as executors of Robert H. Arkenburgh, deceased, and also from an order bearing date the 21th day of January, 1900, and entered in said Surrogate’s Court, denying a motion to vacate or modify such decree, except as thereby modified.
    
      Charles Edward Souther, for the legatees, appellants.
    
      E. Forsyth Little, Jr., for the executor, respondent.
   Goodrich, P. J.:

This appeal from a decree of the surrogate of the county of Rock-land, and also from an order refusing to vacate or modify such decree further than lie had modified it, is the second appeal from the surrogate in such proceeding. On the. former appeal (38 App. Div. 473) we affirmed the decree of the surrogate, except as to an item of $26,530.6.6, which he had refused to- charge against Oliver M. Arkenburgh, the executor, respondent. The surrogate admitted the evidénce of Oliver as to an agreement made' at an interview between him and his father, that Oliver should be compensated for services in the business by paying him enough -to maintain him in the manner in which he had been brought up.- We held that there-had been no testimony offered by the contestants which had “ opened. the door ” so as to justify the admission of the testimony in relation to that interview. We decided that there had -been error in the admission of this evidence, and for this error reversed the decree so-far as this item was concerned and remitted the proceedings to the surrogate for a further hearing on this branch of the case. Such further hearing was had before the surrogate, -and by his decree he» again decided that this item should not be charged against Oliver nor reckoned with the surplus, nor be distributed as part of the testator’s personal property. ,

The facts in regard to this item were fully stated in the opinion on the former appeal, and the question is whether the learned Surrogate erred in admitting the testimony of Oliver, the same having-been objected to as incompetent under section 829 of the Code of Civil Procedure.

The learned surrogate held that the burden of proof was on the» contestants to show that this balance item was. chargeable against. Oliver, and in his opinion cites three cases to support his ruling. It is true that it was held in the several cases thus cited that the-inventory of an estate filed with the surrogate on accounting presumptively contains a true and full account of all the personal property of the testator and is to be so considered in all subsequent proceedings before the surrogate until the contrary appears, and that the burden of proof rests with a party seeking to surcharge such inventory either as to the amount or value of the property of the deceased. (Matter of Mullon, 74 Hun, 358 ; Forbes v. Halsey, 26 N. Y. 53, 61.) But in the third case it was held that the individual claim of an executor stands on "a different basis and that he is bound to establish his claim -by legal evidence; (Matter of Stevenson, 86 Huh, 325 ; Kyle v. Kyle, 67 N. Y. 400, 408.) The correctness of this position is shown by section 2731 of the Code of Civil Brocedure, which provides that on a judicial settlement the executor may prove any debt owing to him by the decedent, and that where a contest arises between him and other parties interested, the contest must be tried and determined in the same manner as any other issue arising in the Surrogate’s Court.

It is also provided that no part of the property of the decedent shall be retained by the executor in satisfaction of his claim until it shall have been proved to and allowed by the surrogate. (4 R. S. [8th ed.] 2561, § 33.)

This brings us to the consideration of the evidence introducéd at the last hearing, where it appeared, that Oliver had kept the account books of his father, which were put in evidence by the contestants for the purpose of showing the indebtedness of Oliver to his father by the entry in his own handwriting of the item above referred to as a balance against himself, and this was the only evidence on the subject offered by the contestants. On cross-examination, the following occurred : “ Q. Now, explain the items of this account (identifying them) ? ” [Objection was made that any explanation involves a personal communication or transaction with the decedent,” and the objection was overruled and an exception was taken.] “ Q. We want you to explain the items and tell what those items appearing upon those pages were for, what they were. I want you simply to tell what those items represent ? By the Court: Where the entry itself does not show what they were for. By Mr. Tompkins: Yesl A. Every item in the account on those pages represent moneys paid me for servicés rendered. Q. Raid to you by your father? A. Yes, sir. Mr. Brown : Objected to as incompetent and inadmissible under section 829 of the Code, and also that the witness’s claim against the ledger charges is in the nature of a debt if anything, and that to establish it a proof of claim must have been presented and allowed. [The last question withdrawn by Mr. Tompkins.] Mr. Brown : Exception.”

The testimony is not open to the exact and specific objection pointed out by us on the former appeal. Such former testimony was entirely independent of the account and there had been no evidence which justified its admission. The testimony at the last trial, above cited, related to the accounts which had been introduced by. the contestants.

We have then the question whether it was error to permit Oliver to explain the account which had been put in evidence by the contestants. The real difficulty arises from the fact that his answer, that the item represents moneys paid for services rendered by him. to his father, was a conclusion which must have been based on an implied contract or the existence of an express contract between his father and himself to pay that amount for his services. Ro such services were proved on the last hearing, and so there were no facts from" which a contract could be implied. Oh the other hand, there is nó evidence of any express contract. Taking into consideration the facts set out in our former opinion, it is manifest that the witness had in mind the agreement with his father, as to winch he testified on the former trial, , and his conclusion, for it is nothing else, that the item represented “moneys paid me for services rendered,” necessarily involves testimony of communications and transactions between the witness and the deceased and, therefore, ought not to have been admitted. Indeed, I think it more offends the spirit and purpose of section 829 than did the testimony which, in .our former opinion, we declared to be incompetent; for, while it may apparently adhere to the letter of the rule, it permits the witness to ■ deduce a conclusion as to the effect of a conversation with his father; and if the objection had been made that the answer was a conclusion, I. have no doubt that the learned surrogate would have excluded the evidence or stricken out the answer, as he ought to have done.

It was said in Matter of Van Slooten v. Wheeler (140 N. Y. 624, 633): “ Public policy requires that claims against the estates of the dead should be established by very satisfactory evidence, and the courts should see to it that such estates are fairly protected against unfounded and rapacious raids.”

Since the argument of this appeal, the Court of Appeals, in Matter of Marcellus (165 N. Y. 70), has delivered ah opinion which reiterates the doctrines announced in Matter of Vmi Slooten v. Wheeler, using language which affords additional confirmation of the views which I have expressed and suggests a new reason for reversal of the surrogate’s decree, which was based-solely on the testimony of-Oliver. The court said (p. 76): “Practically the only evidence in the case was the testimony of the claimant himself, who was a vitally interested witness. Therefore, the question of his credibility was presented for the surrogate to pass upon. He was not compelled to find in the appellant’s favor simply because he had testified to matters more or less improbable which tended to establish his claim, especially where, if all to which he testified was found true, it was insufficient to require a decision in his favor. Public policy required that his claim against the estate he represented should be established by very satisfactory evidence, and it was the plain duty of the surrogate, in the absence of such proof, to reject it. (Matter of Van Slooten v.Wheeler, 140 N. Y. 624, 633.) The evidence in this case fell far ^short of being sufficient to require an allowance of the appellant’s claim, and the decision of the learned surrogate disallowing it was properly affirmed by the court below.”

■ In Rix v. Hunt (16 App. Div. 540, 545) it was said: “ Where claims are presented against a deceased party it is unquestionably well settled, by repeated adjudications, that the same should be scrutinized with even more than ordinary care in order to prevent, as far as possible, the allowance of -unjust and fictitious demands against parties whose months are sealed by death.”

This evidence being excluded, the question arises, what evidence has been produced by Oliver to establish his claim. The books kept by him show an account entitled “ O. M. Arkenburgh,” commencing January 9, 1878, and ending September 30, 1890, and the balance charged against him was $26,530.66. We need not examine the account prior to June 20, 1888, as there is in evidence a written settlement of that date between Oliver and his father, by which the amount due Oliver for his services was adjusted at $7,769.74, and that sum credited to him in the account.

In December, 1888, and December, 1889, there isa specific credit of $5,000 for services for the closing year, and in September, 1890, a proportional charge for nine months’ services. It is true that the will, dated February 26, 1889, contains a provision that the only advancements which have been 'made to any of my children up to and at the date of this, my will, are such as have been made to my son Robert H. Arkenburgh,” but in order to bring this item within the term “ advancements ” it was necessary that Oliver should prove that it was intended by the testator as an advancement: There is no such evidence. Nor does Oliver claim that it- was an advancement, but that it was in compensation of his services for his father.

There is then-no evidence that the item In question is a just claim against the estate of the deceased, but on the contrary the entry in the handwriting of Oliver, unexplained by him, is evidence that it isá just claim .against him and a part of the father’s estate.

Section 2586 of the Code of Civil Procedure confers upon this-court, where an appeal is taken upon the facts, the same power, which the surrogate had to decide the questions of fact. As the question of the liability of Oliver to the estate has been twice considered by the surrogate, I think the matter should be remitted tollina with instructions to enter without further hearing a fiti'al.decree .in accordance with this .opinion, with costs to the appellant of this-appeal.

The appeal from the order denying the motion to vacate or modify the decree, relates chiefly to the allowance by the surrogate of costs to Oliver out of the funds of the estate. Under the circumstances, it is proper that the costs of' both- parties should be taxed and jaaid out of the estate. ■. ,

All concurred, except Sewell, J., taking- no part.

Proceedings remitted to the surrogate of Rockland county, with directions to modify decree and order in accordance with the opinion of Goodrich, P. J.  