
    In the Matter of the Judicial Settlement of the Accounts of Sarah M. Ryalls, Administratrix of the Goods, etc., of William H. Ryalls, Deceased, as to the Proceedings of the said William H. Ryalls, as Executor of the Last Will and Testament of Elizabeth Haney, Deceased.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1893.)
    
    1. Executors—Accounting.
    The burden of proof in affirmatively establishing liability is upon the contestants seeking to surcharge the accounts of the administrator.
    2. Same.
    The fact that the testator, one year before his death received money, is insufficient, without any evidence connecting his executor with it, to charge the latter, on his final accounting, with such money.
    3. Appeal—Error op law.
    A finding of fact without evidence is errof of law.
    4. Evidence—Documentary.
    A memorandum, made by the intestate of claims due her, and choses in action belonging to her, not delivered to the administrator, is inadmissible against him on his final accounting.
    5. Same—Improper evidence.
    When improper evidence is received which, it is not evident to the court, can in no way harm the appellant, it is the duty of such court .for that reason to reverse.
    Appeal by the administratrix from the decree of the surrogate of Saratoga county, on the judicial settlement by her, as to the proceeding of William H. Ryalls, as executor of the will of Elizabeth Haney, deceased.
    
      Grenville M. Ingalsbe (L. H. Northup of counsel), for app’lt; C, H. Sturges, for resp’t, Elizabeth R. Cowan; J. W. Houghton, for iesp’t, Charlotte A. Patterson; Henning & McCall, for resp’t, Harlam P. Ryalls.
   Mayham, P. J.

Sarah M. Ryalls having been cited before the surrogate to show cause why she, as administratrix of the estate of William H. Ryalls, deceased, did not settle his accounts as executor of the will of Elizabeth Haney, deceased, appeared before the surrogate and filed her petition for such accounting. Whereupon the surrogate issued citations to the persons entitled to notice, and on the return of such citations she filed her account duly verified, in and by which she charges herself, as such administratix, with the suni of $935.58, and alleges want of knowledge of any other liability with which the estate of William H. Ryalls should be credited on account of disbursements, made by him in his lifetime. Each of the children of Wm. H. Ryalls, who are the residuary legatees in the will of Elizabeth Haney, filed objections to such account, in and by which they surcharged the same, alleging in substance that the said William H. Ryalls held about ten thousand dollars of the property of the said Elizabeth Haney, in which he had a life interest only, by her will, and that the remainder was bequeathed to his children after his death, in equal proportions. In support of this contention the contestants proved by evidence quite satisfactory, that a mortgage of $2,000 given to Mrs. Haney on which there appeared to be due at the time of the death of William H. Ryalls the sum of $500, on which sum the interest was paid to the petitioner for three years.

There is also some evidence of the confessions or statements of William H. Ryalls, made at about the time of marshalling the assets of his testator Elizabeth Haney, that her estate would amount to about $20,000. It does not appear that this statement was an assertion of a fact, but rather a loose estimate or opinion of the probable amount, and standing alone does not seem to me under the circumstances in which it was made, to be such an admission of a fact as would bind him to account for that amount. But the contestants seek to charge the estate of the deceased executor by proving the amount of property and money received by and known to be in the possession of his testator during the four or five years in which she lived with him immediately before her death. And upon this proof the surrogate seems mainly to have relied in making his decree without any direct proof that this property ever passed into the hands of her executor. Was this proof alone sufficient to charge his estate with the amount of the testator’s property in the hands of his administratrix ? The rule is well settled that the burden of proof in affirmatively establishing liability is upon the contestants seeking to surcharge the accounts of the administrator. Forbes v. Halsey, 22 N. Y., 60-61; Marre v. Genochio, 2 Brand. Sur. R., 165 ; Bainbridge v. McCullough, 1 Hun, 488.

The will of Elizabeth Haney by its terms placed the residuum of her estate so completely at the disposal of her executor as devisee and legatee for life that so much of the estate as may have been under the terms of the will consumed by him in his lifetime, would not be properly chargeable against his administratrix as the personal representative of his estate. It was, therefore, incumbent on the contestants, before they can surcharge the accounts of the petitioner, to show the amount of the estate of Elizabeth Haney which came to the hands of the executor of her will, and also the amount remaining in his hands undisposed of at the time of his death.

While the testimony of Lighthall as to the payment made to the testatrix of money during the time she resided with William H. Ryalls was competent as a circumstance tending to prove the amount of the' estate of testatrix, it does not seem sufficient standing alone to charge the estate of her executor with a liability for that amount. Assuming that the statement of Mrs. Haney dated October 6, 1875, that she at that time left with Lighthall $7,971.-85 was competent evidence and was at the time tru’e, and that $7,545.82 of that amount was from time to time from that date to August, 1879, forwarded by him to her, does it raise such a legal presumption that she had it at the time of her death, March, 1879, as to create a valid charge against the estate of the executor?

For answer to that question we are referred by the learned counsel for one of the contestants to Matter of Clark, 119 N. Y., 427-433 ; 29 St. Rep., 682. In that case the court held that § 5606 of the Code of Civil Procedure which authorized a surrogate upon the death of an executor to require his executor or administrator to account for and deliver over the trust estate ; such representative stands in the place of the decedent for the accounting, and the surrogate’s power is precisely the same as if the letters of the deceased executor had been revoked in his life time, and he had been called upon to deliver up the assets. In that case his mouth would be closed as to any evidence of personal transactions between him " and the testatrix, and the case would stand upon the memorandum of the testatrix and the evidence of Lighthall alone. Such evidence in our judgment would not be sufficient to charge the deposed executor with the payment of this $7,545.82, forwarded by Lighthall to the testatrix. There is to my mind a marked difference between the facts of this case and those of Matter of Clark, Supra.

In that case the referee found upon direct proof that the executors within three months after the death of the testator received $15,000 of money belonging to the estate, and deposited the same in the bank to his own credit. That case is not an authority that money in the possession of the testator some time before his death is evidence upon which to charge the estate of his deceased executor with the amount of the same, and we do not think that evidence, that a testator one year before his death.received money is sufficient without any evidence connecting his executor with it, to charge such executor on his final accounting with such money. It might be sufficient on a proper application to compel him to marshal the assets/to require him to search for such money, and, if found, place it upon the inventory, but is not sufficient evidence to create a liability against the estate of the deceased executor.

If we are right in this conclusion then there is no evidence upon which a finding that the executor or his estate can be charged with $8,685.51 as found in the first conclusion of law, of the learned surrogate, or that that sum came into the hands of this administratrix belonging to the estate of Elizabeth Haney, deceased. It is well settled that a finding of fact without evidence is error of law; Code of Civil Procedure, § 993. Van Bokkelen v. Berdett, 130 N. Y., 141; 41 St. Rep., 312; Turner v. Seabury, 135 N. Y., 50-51; 48 St. Rep., 120.

Several questions are raised by the appellant as to alleged errors of the surrogate in the receipt of evidence offered by the contestants. We think the learned surrogate erred in receiving the memorandum made by Mrs. Haney, of claims due her, and choses in action belonging to her, delivered to Lighthall. That was not a statement made to or presented to William Byalls, or in any way binding upon him or his estate. It must have been received as evidence of the amount of property owned by his testatrix. But as he was not a party to it, or, so far as appears cognizant of its existence, it is difficult to see how it could bind him or his estate.

It was not competent, even in corroboration of the testimony of Lighthall as to the amount of money forwarded by him to the testator, and yet this court cannot see that it did not harm the petitioner. When improper evidence is received which the court cannot see could in no way harm the appellant, it is the duty of the appellate court for that reason to reverse. For the reasons above stated we think the surrogate’s decree erroneous, and as the facts are not sufficiently before this court to enable it to modify the decree, there should be a new trial or hearing before the surrogate under § 2587 of the Code of Civil Procedure, ■ with costs of this appeal to be charged upon the contestants, and paid out of their shares of the estate of Elizabeth Haney, deceased, and bequeathed to them in her will.

Let an order be entered in accordance with this opinion.

Herrick, J., concurs ; Putnam, J., concurs in result.  