
    Eliza Glenn, Respondent, v. Louisa C. Burrows et al., Appellants.
    
      Supreme Court, Fifth Department, General Term,
    
    
      October 19, 1889.
    
      Mcecutors, etc. Claims.—The estate of a decedent is not liable for loans made to the executor.
    Appeal from an order of the special term of Erie county* confirming the report of the referee touching the allowance and disallowance of certain claims against the estate of Roswell S. Burrows, deceased.
    
      John Cunneen, for the receiver, respondent.
    
      Shuart & Sutherland, Signor & Wages, John H. White and E. L. Pitts, for appellants.
   Macomber, J.

There are two classes of appellants in this-action, namely, those whose claims were wholly rejected by the referee, and those whose claims were in part allowed and. rejected in part by him.

The special term has confirmed the report of the referee in all respects, excepting a slight modification thereof permitting certain claimants to withdraw their claims, which is not necessary to he considered upon this appeal.

Roswell S. Burrows died in the month of March, 1879, leaving a last will and testament, upon which letters testamentary were issued to the defendants, Louisa C. Burrows, William R. Burrows, Albert S. Warner and Alexander Stewart. Warner and Stewart had the control and management' of the estate up to the year 1883, when the same was devolved solely upon Warner. This continued until the month of August, 1884,. when Warner, having been discovered to be a defaulter to the estate for a large amount, fled from this state, leaving the estate in a crippled and embarrassed condition, if not totally insolvent. Subsequently, a receiver was appointed by the court in this action to take charge of the estate and administer its affairs in place ■of the trustees named in the will. This action was brought in behalf of the plaintiff and all others having claims of a similar nature against the estate.

All of the principal questions herein were decided and disposed of, so far as this court is concerned, in the decision in this action reported in 37 Hun, 602. By reference to that decision, it is seen that this court held that the claim of the plaintiff was a valid one against Burrows’ estate in so far as it had been incurred during the lifetime of the testator, but that loans to the executors or trustees, evidenced by the latters’ promissory notes, accompanied by a surrender of the original notes given by Mr. Burrows, were not valid claims against the estate. The referee, in a carefully considered report, has taken the proofs which he was directed to take in pursuance of the last-mentioned decision, and, following the opinion of this court, has allowed to such claimants as have presented their demands payment out of the funds of the estate, so far as the same can be made, of all demands existing against Roswell S. Burrows in his lifetime, but has rejected the claims arising subsequently by loans made by the several claimants to Warner and Stewart, or to Warner alone.

It follows that the order appealed from should be affirmed, with costs.

Barker, P. J. and Dwight, J., concur.  