
    In the Matter of the Judicial Settlement of the Accounts of J. Lee Humfreville, one of the Executors, etc., of Mary J. Havemeyer, Deceased. J. Lee Humfreville, Respondent; Edward Kent, as Executor, etc., of Mary J. Havemeyer, Deceased, and Others, Appellants.
    
      Decedent’8 estate—the claim of an executor must be clearly proved — an executors statements as to services rendered, create no presumption that his testatrix knew of them—possession of a check in favor of an executor signed by his testatrix, on ce bank having no funds for its payment.
    
    Claims against the estate of a decedent, especially when presented by an executor or administrator, should not be allowed except upon the clearest legal proof, and where the facts upon which the claim is based are established by very satisfactory evidence.
    Where a surrogate confirms the finding of a referee that an executor has rendered services to his testatrix, and that a check signed by her and in his possession, created a valid claim against the estate, an exception to the finding raises the question whether there was any evidence sufficient to sustain the finding.
    The provisions of section 829 of the Code of Civil Procedure prohibit direct, and also indirect, testimony relative to a personal transaction had with a deceased person.
    An executor may be permitted to testify that he performed certain work in relation to the property of his decedent, but no inference will be drawn therefrom that the deceased either knew of or authorized the performance of the services.
    The mere possession by an executor of a check, signed by his testatrix, not-dated, the body of it being written by the executor, drawn upon a bank where the testatrix had insufficient funds for the payment of the check, accompanied by proof that the papers of'the testatrix came into the possession of the executor, does not afford satisfactory evidence that the testatrix was indebted to the executor, the pa)Tee of the check, in its amount.
    
      Appeal by Edward Kent, as. executor, etc., of Mary J. Havemeyer, deceased, and others, from so much of a decree of' the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 17th day of March, 1896, as adjudges that J. Lee Humfreville has a valid claim against the estate of Mary J. Humfreville, deceased, for services rendered by him to her.
    
      Henry H. Whitman and John Broohs Leamitt, for the appellants.
    
      Abram, Kling, for the respondent.
   Ingraham, J.:

We do not think there is any evidence to support the finding of the referee that the claimant, the respondent, performed any services for the testatrix under her retainer or employment, or with her knowledge, for which she was indebted to- him. The only testimony as to the performance of any services was that given by the iespondent. That testimony was all objected to.as incompetent, under section 829 of the Code of Civil Procedure; but, assuming that it was competent to prove the fact that he did certain work, it was not competent, either directly or indirectly, to prove the fact that what he did was with the knowledge or consent of the testatrix, or under her employment. The case thus stands entirely bare of any testimony proving, or tending to prove, the fact that this testatrix ever employed the respondent to perform any services for her, or had any knowledge that he had performed, or was performing, services for her.. So far as appears by the evidence, the respondent was a mere volunteer, rendering services in relation to another’s property, without her employment, consent or knowledge.

, The principle is now too well settled to be disputed that section 829 of the Code “prohibits not .only direct testimony of the survivor that a personal transaction did, or did not, take place, and what did, or did not, occur between the parties, but also every attempt by indirection to prove the same thing, as by negativing the doing of a particular thing by any other person than the deceased, or by disconnecting a particular fact from its surroundings and permitting the survivor to testify to what, on its face, may seem an independent fact, .when, in truth, it had its origin in, or directly resulted from, a personal transaction.” (Clift v. Moses, 112 N. Y. 435.) It was held, in that case that the defendant could not be permitted to testify as to the' possession of certain notes. in suit, there having been evidence that such notes had been delivered by the deceased to the witness.

The rule established by section 829 of the Code is thus stated in the case above cited: It is too broad a statement that where the ultimate.fact- cannot be proved under this section by a witness, he cannot testify to any of a series of facts from which the ultimate fact may be inferred, but if there is introduced into this statement the qualification that he cannot testify as to any of the particular facts, which originated in a personal transaction with the deceased, or which proceeded from such transaction as a cause, the statement so qualified may be substantially correct.” •

Applying'this statement of the rule to the facts in this case, it is apparent that the respondent could not.give competent testimony as to-any fact which originated in a personal transaction with the deceased, or which proceeded from such transaction as a cause.” Thus the fact that he performed certain work in relation to her property, as an independent fact entirely dissociated from any personal transaction with the deceased, may possibly have been competent evidence ; but the provision of the' Code does not allow us to infer from the mere performance of services in relation to her property, that she employed •him, because that would be allowing him to testify to a fact which proceeded from a personal transaction with the deceased as a cause. The fact, therefore, that he did the work could be proved by him. But assuming that the fact was competent evidence, the inference from the fact that she either knew of or authorized the performance of the services could not be drawn from his testimony.

So in regard to the possession of the check which the respondent claims to have received from the testatrix in payment for such sendees; assuming that it was competent for the respondent to testify that at a particular time he had that piece of paper in. his possession, under the case of Simmons v. Havens (101 N. Y. 432) no inference could be drawn from the fact as testified to by the respondent that the deceased had delivered the check to him, or that it was given to him as ¡consideration for any services rendered by him to her. All that the respondent could prove was - the independent isolated fact that at a particular time he had that piece of paper in its present condition in his possession ; and from that fact no inference of a personal transaction with the deceased could be drawn. (Lerche v. Brasher, 104 N. Y. 157, 164.) We have thus a claim presented against the estate, where there is no evidence that the claimant performed any services at the request or with the knowledge of the deceased, or that she ever delivered to him a' check, or acknowledged, an indebtedness, but where the claimant has in his possession,, without any explanation'or inference as to how' it Was received, an Undated check, the body of which is in his own handwriting, and where it appears that while the decedent had an account with the banking house upon which it is drawn, there was not money enough in such account to pay the check, and where it further'appears that the person making the claim is the executor into whose possession came all of the principal papers of the testatrix. ; The questioivtlius is, does the mere possession of the check, under such conditions, justify an inference that the testatrix was indebted to the holder or payee of the .check, in the amount named therein ?

The surrogate having confirmed the finding of the referee that as a fact services had been rendered and that this check was a-valid claim against the estate, an exception to. that finding raises the question whether there was any evidence to sustain the finding.. (Burger v. Burger, 111 N. Y. 523.) ' ■

But in determining these questions as to the validity of a claim made by an executor against the estate of which he is trustee, the courts have always required that there should be presented clear proof of the existence ■ of the claim; and many, expressions have been used in the cases as1 to the nature of the evidence that the courts would require before allowing a claim under such circumstances to be established. The general rule now seems to be established that such claims should not be allowed, especially when presented by an executor or administrator, except upon the clearest legal proof, and where the facts upon which the claim is based are established by very satisfactory evidence. (Van Slooten v. Wheeler, 140 N. Y. 624; Ellis v. Filon, 85 Hun, 485.)

The claimant relies upon, the inference of the existence of a claim against the deceased from the mere fact of the production of the check, relying upon the general rule that the delivery of a check by the drawer to the payee is presumptive evidence of the existence of a debt to pay which the check was given; and it is upon this theory that the respondent must sustain his right to recover. .Nothing has-been shown to create the slightest inference that the testatrix was-indebted to the respondent at this time in any amount, except the= bare presentation of the check. But, this inference applies only where there is no evidence to show that the. check could have beem' given for another purpose, or could have been obtained by the payee; in any other capacity except that of a creditor receiving payment of his demand.

In this case many facts are presented which tend strongly to show that this check may have been received by the respondent for some other purpose than that of paying the alleged debt of the testatrix, to him. It is undated, not even the month or year being written-in the body of the check, and is in the handwriting of the respondent, the signature merely being that of the testatrix. The account, of the testatrix with the bank upon which the check was drawn, was entirely insufficient to pay the check; and thus it could not. have been that the testatrix gave the check to the respondent for the purpose of paying him any debt which .she owed him, as such, check could not be used for that purpose, there being no money at the bank to pay it.

The fact that the respondent has testified in this proceeding that: during this period he was acting in the matter of the testatrix’s business and in relation to her property, cannot be considered in determining whether this instrument, undated and useless for the purpose of giving the respondent an opportunity to get the money from the’ bank, was given in payment of an existing indebtedness; and the fact' of the relation which had existed between the parties, the fact that he-was her executor and that upon her death he obtained possession of' all her papers, coupled with the fact, as before stated, that the check: is in his own handwriting, the signature only being written by her, the absolute unexplained omission of the date, the fact that nothing1 was said to any of the beneficiaries or .to his co-executor about the-existence of the check until four years after the death of the testatrix,, and the possibility — not that we wish to intimate that we believe it probable — but the possibility that, a blank check having been found. among the testatrix’s papers, the respondent could have himself filled it in after her death, present a case in which the presumption of indebtedness that the law raises upon the production of the check itself is rebutted, and one in which the mere production of the check itself is not the clear and satisfactory evidence which the law requires-to establish a claim of this kind.

We think, therefore, that the decree of the learned surrogate, so far as it allows the claim of the respondent as a valid claim against the estate of the decedent, should be reversed, with costs to the co-executor of the estate, to be paid by the respondent, and the proceeding remitted to the surrogate for further action.

"Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.

Order reversed, with costs to the co-executor, of the estate, to be paid by the respondent, and the proceeding remitted to the surrogate for further action.  