
    Bertram L. Marks, as Ancillary Executor, etc., of John B. Morgan, Deceased, Respondent, v. L. Laflin Kellogg, as Executor, etc., of George H. Morgan, Deceased, Appellant.
    First Department,
    December 10, 1915.
    Decedent’s estate — action to recover legacy — release of'legatee from liability for moneys loaned — proof justifying recovery.
    Action against an executor to recover a legacy left by the testator to his brother by a will which also released the legatee from liability for all loans made to him by the testator up to the amount of' $25,000, the defense being that the total indebtedness of the legatee exceeded said sum.
    Evidence examined, and held, that the total indebtedness pf the legatee to the testator was less that $25,000 and that the plaintiff was entitled to recover.
    Appeal by the defendant, L. Laflin Kellogg, as executor, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of May, 1915, as amended by an order entered in said clerk’s office on the 14th day of June, 1915.
    The judgment was entered upon the report of a referee appointed to hear and determine the issues.
    
      Abram J. Rose [ William K. Hartpence, with him on the brief], for the appellant.
    
      Louis Lowenstein, for the respondent.
   Laughlin, J.:

This is an action by the ancillary executor of John B. Morgan, deceased, to recover a legacy of $75,000 under a codicil to the last will and testament of his brother George H. Morgan, deceased. The will of George H. Morgan was executed on the 7th day of June, 1904. By the 7th paragraph of the will he gave a legacy to his brother John as follows:

“I give and bequeath unto my brother, the Reverend John Brainard Morgan, D. D., of Paris, Prance, the sum of Fifty thousand dollars, if he shall survive me. In case of his death before me, then the said legacy to my said brother is to lapse, and the sum hereby bequeathed is to form part of my residuary estate.
“And I do also give and bequeath unto my brother, the Reverend John Brainard Morgan, D. D., any debt which at the time of my decease shall be and exist in my favor against my said brother, whether then due or payable or thereafter to become due and payable, together with any interest then due thereupon. And if my said brother shall not be living at the time of my decease, I do direct and request that no proceedings be taken by my Executors for the collection of the same against his estate, hereby discharging my said brother from all liability to me thereon.”

By a codicil executed on the 16th day of April, 1908, this legacy was changed as follows:

“I give and bequeath unto my brother, the Reverend John Brainard Morgan, D. D., of Paris, France, the sum of Seventy-five thousand dollars ($'75,000), if he shall survive me. In case of his death prior to my death, then the said legacy to my said brother is to lapse, and the sum hereby bequeathed is to form a part of my residuary estate, and I do hereby cancel, annul and forgive any indebtedness to me or to my estate, arising out of any advances or loans which, during my lifetime, I may have made to my said brother, the said the Reverend John Brainard Morgan, X). D., or for other cause, so far as the said indebtedness or advances may remain unpaid at the time of my death to the extent and amount only with accrued interest of the sum of Twenty-five thousand dollars.”

The plaintiff’s testator, John B. Morgan, had for a great number of years resided in Paris, France, and he died on the 13th day • of January, 1912, having survived his brother George, who died on the 28th day of April, 1911. George H. Morgan resided in New York and left a widow and three children and a residuary estate of some $2,000,000. John B. Morgan was an Episcopal minister and conducted a church in Paris, and, while he had some property, the evidence showed that his brother George H. was interested in his success and welfare, and at times contributed financially to his aid, and manifested a willingness so to do whenever called upon or whenever necessary.

The appellant in his answer pleaded an indebtedness of $41,900, together with interest on the various items thereof from different dates, less the sum of $25,000 forgiven by the codicil; but notwithstanding this admission in the prayer for relief in the answer, appellant insisted on the trial and claims on the appeal that inasmuch as John survived George there was no forgiveness of any of the indebtedness. The learned referee held otherwise, and we agree with his construction of the will in this regard and do not deem it necessary to consider the contentions with respect thereto.

The learned referee also found that the total indebtedness of John to George at the time of the death of the latter, together with interest thereon, was less than $25,000, and, therefore, a recovery for the full amount of the legacy given by the codicil, together with interest thereon from one year after the death of the testator, was allowed. It is contended on the part of the appellant that the learned referee disallowed certain claims that should have been allowed, and by which the indebtedness owing to George from John would have been increased. We have reviewed the evidence and examined the findings in the light of the arguments presented on the appeal and we agree with the learned referee that the total amount of the indebtedness owing by John to George, together with interest thereon down to the date of the death of the latter, did not exceed the sum of $25,000, and that, therefore, the plaintiff was entitled to recover the entire amount of the legacy together with interest thereon.

Counsel for appellant contends that some of the findings favorable to respondent should be reversed and new findings favorable to appellant made, and counsel for respondent claims that certain findings favorable to appellant should be reversed and others favorable to respondent substituted therefor. This we have a right to do. (Rives v. Bartlett, 215 N. Y. 33.) There is some evidence to support every finding which appellant asks us to reverse, and the evidence on which he claims other findings favorable to him should have been made is, at most, open to conflicting inferences. The only requests to find for appellant not granted by the trial court about which we have any doubt with respect to whether the evidence preponderates in favor thereof, are those relating to whether the payment by appellant’s testator of four installments of interest aggregating $2,000 on a mortgage on a farm at Newport, B. I., owned by respondent’s testator, constituted loans to the latter. We do not deem it necessary here to discuss the evidence bearing on this question, or to determine whether an appellate court would be warranted in saying the findings should have' been made, for we are convinced that other findings favorable to appellant are not supported by the evidence and should be reversed, and, therefore, if we made findings favorable to appellant on this payment of interest, the total indebtedness of John to his brother George at the time of the latter’s death would be less than the amount forgiven by the codicil.

It appears that the testator and one Bowland, of the firm of Tilghman, Bowland & Co., each had an undivided one-half interest in a one-twentieth interest in the Sierra Madre Construction Company, and that on their subscription to such interest a call for $5,000 was made. It was not convenient for either of the other subscribers to pay his share, and at John’s request George advanced the money to make the payment, and by letter requested John to send him a promissory note therefor. There was found with the papers Of George a promissory note made by John bearing date on the day George advanced the $5,000 for this purpose and for that amount. The referee found that this note was given on account of that payment by George for the benefit of John and his coadventurer. We think the evidence fairly sustains that finding, and that there is no foundation for the appellant’s claim that an indebtedness of $5,000 on account of the advance of that amount for the purpose stated should have been found in addition to the indebtedness evidenced by the note.

The referee also allowed two other items, one of $1,500 and one of $1,000, for payments made by George for John’s account with respect to said Sierra Madre syndicate. The learned counsel for the respondent argues that those findings should be reversed on the ground that the evidence does not sustain them. We think this contention is well founded. There is no competent evidence that these payments were made by George. The evidence relied upon is a letter from Tilghman, Rowland & Oo. to George stating, so far as material, that “ on April 9th, we chgd. your a/c $1500 and on April 13th you gave us your check for $1000. Both these items went through Geo. H. Morgan ‘ B ’ a/c and was intended, we think, for the benefit of J. B. M.; ” and a receipt given by Tilghman, Rowland & Oo. under date of April 13, 1897, to George for a check of $1,000, reciting that it was “to be credited to account of John B. Morgan,” supplemented by the testimony of the witness who gave the receipt, to the effect that he would not have given a receipt if he had not received the check. No check showing either of these payments was produced and no note therefor, as in the other instance, was produced, and no correspondence was shown between George and John with respect thereto. Findings Nos. 10 and 11 should, therefore, be reversed.

The learned referee allowed as an item of indebtedness on the part of John to George a draft for $400 drawn by John on December 10, 1897, at Paris, on George to the order of John Munroe & Oo. An employee of Munroe & Co., the Paris firm, testified that this draft was cashed for John by Munroe & Co. and forwarded to New York for collection, and there collected by John Munroe & Co., the New York firm. The draft was found with the effects of George. It appears that John owned securities and other property here which were intrusted to George, who at times had authority to sell or pledge certain securities of which he had charge for John. There is in these circumstances no evidence in favor of the appellant to take the payment of this draft out of the general rule that, in the absence of other evidence, a loan is not to be presumed from the making of a check or the acceptance and payment of a draft, but that it is to be presumed in such case that the transaction constituted a payment on account of an existing indebtedness by the maker of the check or the acceptor of the draft. (Leask v. Hoagland, 205 N. Y. 171; Matter of Carrington, 163 App. Div. 544; Griffin v. Train, 90 id. 16; Mills v. McMullen, 4 id. 27; Matter of Baldwin, 11 id. 551; Sayles v. Olmstead, 66 Barb. 590.) It is true that slight evidence is sufficient to render this presumption of law inapplicable, but in order to warrant a recovery or an offset there must be some evidence to show that the check or draft was not given in payment of an antecedent indebtedness or as a gift, but was intended as a loan. (Poucher v. Scott, 98 N. Y. 422; Stimson v. Vroman, 99 id. 74, 81; Nay v. Curley, 113 id. 575.) These views lead to the reversal of the twelfth finding, and they sufficiently answer the contention made on behalf of the appellant with respect to three other drafts which were disallowed by the referee. We do not agree in all respects with the application of payments made by the learned referee in determining the balance owing from John to G-eorge, but the account would not be materially affected and the result would not be changed if we were to revise the decision so that it would conform to our views in every respect, and we, therefore, deem it unnecessary so to do.

It follows that the findings should be modified in conformity with the views herein expressed, and the judgment affirmed, with costs.

Ingraham, P. J., Clarke, Scott and Smith, JJ., concurred.

Findings modified in conformity with views expressed in opinion, and judgment affirmed, with costs. Order to be settled on notice.  