
    Frederick Volhard, Respondent, v. Eliza Volhard, Individually and as Executrix, etc., of Caspar Volhard, Deceased, Appellant.
    First Department,
    May 24, 1907.
    Executors and administrators —facts insufficient tp show that decedent received property as executor — remainderman not entitled to sue representative of deceased executor — court — when Supreme Court will not hear accounting by representative — evidence — deed, how proved. ■
    In an action by a remainderman against the representative of the deceased life' beneficiary, evidence that over two years before the testatrix’s death-she sold certain lands is insufficient to 'show that the purchase price ever came into the • hands of her executor. There is no presumption that the testatrix was not indebted or that the proceeds of the sales were not used to pay her debts.
    ■Other evidence considered. and held insufficient to establish that the executor received the proceeds .of mortgages and savings bank deposits formerly owned by decedent.
    While the Supreme Court has jurisdiction to compel an executor to account, it will refuse to exercise such jurisdiction, unless the circumstances require the interposition of a court of equity rather than the usual proceedings before the surrogate.
    A remainderman is not entitled to sue the representative of a deceased executor and life beneficiary for a personal judgment, for such representative can only . be compelled to account for property of the prior estate which came into possession of the deceased executor and the question cannot be determined without the presence of a representative of the prior estate to whom the ’ accounting should be made.
    The way to prove deeds and mortgages at trial is by the original instrument, the .original records or certified copies. The court is not justified in receiving, against objection, a statement of counsel as to the contents of recorded instruments, thus throwing the burden upon the defendant to search the records to test the accuracy of . the testimony.
    Appeal by the defendant, Eliza Yolhard, as executrix, etc., .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 17th . day of January, 1905, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Garl A. Sansmann, for the appellant. • .
    
      M. Mallheimer, for the respondent.
   Ingraham, J.:

The action is brought to recover the property of Adelheid Vol-hard received by her husband, the defendant’s testator, under the last will and testament by which she gave and bequeathed to her husband all her real and personal property so long as he should live, with a provision that after the death of her said husband the property should be- equally divided between her two children, Frederick . and William. This will was executed on the 1st of July, 1880, the ' testatrix died on the 26th of July, 1890. One of her children., William, died before her,, and she left her surviving her husband, the defendant’s testator, and her son Frederick, the plaintiff. The •will was admitted to probate by the "surrogate of Kings county on December 3, 1890, and letters testamentary issued thereon to the defendant’s testator. Subsequently the defendant’s testator married the defendant and died in Germany on the 6th of June, 1900, leaving a last will and testament in which he gave, devised, and bequeathed to his wife, the defendant, all Ins property for life with a remainder to his children “ now born or hereafter-to be born to me by my said wife.” This will was duly admitted to probaté on the 20th of December, 1900, and letters testamentary issued to the defendant.

The court found that the defendant’s testator, as executor of the last will and testament of his first wife, Adelheid Volhard, received various amounts aggregating $17,217. - Wé -think this .finding is without evidence to sustain- it.

Of this amount the sum of $8,975 is found' to be the. proceeds of real 'estate. The Only evidence to sustain that finding is. the fact that at various times between July 26,1886,, and April 18,-1889, Adelheid Volhard and Mary Keiser conveyed to various people real property for specified considerations, one-half of which aggregated - the- amount, that' it is found the defendant’s» testator received as executor of Adelheid Volhard. Adelheid Volhard died on July 26, 1890. She made no conveyance of property within a year of her death and there is no evidence that any portion of the various considerations for any of- these conveyances remained in lief hands at the .time of her death 'or was- ever received by defendant’s testator. The facts of these conveyances unexplained is not sufficient to base a finding that the grantors received the consideration ; that it remained in the grantors’ hands for a period ranging from foiir years to one year, and that it was received by the- executor. ■ It will be .noticed that these conveyances aré all by Adelheid Volhard and_ Mary Keiser; there was evidence that -they were in the real estate business together; There is no presumption that Adelhéid Volhard was not indebted for a portion of this money, or that the proceeds of these sales were-not used to pay her debts.

There-was also- introduced in evidence three .mortgages. One for $2,000 to Adelheid Volhard and • Mary Keiser was -evidently given as part consideration of a piece of property sold by Adelheid Vol-hard and Mary Keiser to the- mortgagor on the day Of its date,' namely, March 3, 1888, and which seems to have been satisfied on March.25, 1890, some months before the testatrix died. As to the other two mortgages mentioned in this finding, one for $1,000¡ and the other for $1,40.0, there was no evidence that they were, ever paid, or that the defendant’s testator ever received the mortgages. So far as the mortgage for $2,000 is concerned, the defendant’s testator would seem to have been charged with it twice; once as the proceeds of the real property, and again as a satisfaction of tlie mortgage; which was evidently given to secure part of the consideration for the conveyance.

There was evidence -to sustain the finding of fact as to the ' Schiefer mortgage for $4,500, but there is no other evidence that the defendant’s testator received any other mortgage or the proceeds of any real property belonging to his testatrix.

There is also the sum of $2,042.98 'withdrawn from the German Savings Bank for which the defendant is charged.. The evidence in respect to that account is that on December 2, 1889, over six months prior to her death, Adelheid Yolhard had on deposit in the German Savings Bank the sum of $2,042.98, which on that day was withdrawn and the account closed. There was no evidence to. show who drew the money; no evidence to show what'the deceased did-with it, or to show that it remained in her possession down to the time of her death.- I cannot find the slightest' evidence that any part of this money was traced into the hands of the defendant’s testator. With the exception of the Schiefer mortgage there is no evidence, as I read the record, to sustain the finding of the trial court that the defendant’s testator received or ever had in his possession, either as executor, trustee or otherwise, any of the property of Adelheid Yolliard.

But under no circumstances was the plaintiff entitled to a personal judgment against the defendant. Assuming that the defendant lias appeared in the action, arid the court obtained jurisdiction over her, she could only be compelled to account as executrix of Caspar Yolhard for property of her testator’s first wife which had come into his possession. If a judgment was obtained against the the defendant as executrix, that judgment could be enforced in the Surrogate’s Court by compelling her to account for all the property of her testator which had come into her hands. But there was certainly no justification for awarding against her a personal judgment in this action.

But I do not see how this question as between the estate of Adelheid Yolhard and the estate of Caspar Yolhard can be determined without the presence of a representative of the estate of Adelheid Yolhard. Caspar Yolhard never accounted as executor of her estate and he was responsible only to her estate. Before there could be a settlement o£ his accounts as executor a representative of the estate should be appointed, and it is to such a representative of the estate that the executor of the estate of Caspard Volhard is required to account. And that accounting should be in the Surrogate’s Court having jurisdiction and not in the Supreme Court. While the Supreme Court has jurisdiction to compel an executor to account, it has consistently refused to exercise such jurisdiction unless under circumstances winch require the interposition of a court of equity rather than the usual proceedings before the surrogate. There is nothing in this case that requires the Supreme Court to take jurisdiction, and I think this whole question between these two estates should be settled- in the Surrogate’s Court having jurisdiction and not in the Supreme Court.

The plaintiff attempted to prove these various conveyances by Adelheid Volhard by offering various mortgages and conveyances, simply reciting the date of the instrument and the date and place of record. Counsel for the defendant objected to this method of proving these records and insisted either Upon the original records or certified copies of the instruments. This objection was overruled, the court saying that the offer would be received; and if you think there is anything appearing of record in the Register’s Office with respect to these instruments, * * * yon will have ample time and opportunity to do so.” Counsel for the defendant still insisted Upon his objection, stating that he was entitled to have certified copies or the records themselves, to which the court replied: “ In other words, all this is taken subject to correction, if you find there is any inaccuracy.” To this ruling the defendant excepted. It is quite evident that these exceptions were well taken. Ho records were produced and no certified copies of the instruments or the instruments themsel ves were produced. The only way of proving instruments of this kind is by either the original instrument, the original record or a certified copy. The court is not justified in receiving a statement of counsel as to the contents of the instruments recorded, thus throwing the burden upon the defendant of traveling to the various recording offices to examine the records, and subsequently question the accuracy of the counsel’s statements. It was necessary to produce the instruments themselves or-the records or copies of them in court, and counsel could not, by verbally stating to the court the contents of the instruments, have such a verbal statement of the instruments taken as evidence.

The judgment should, therefore," be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, McLaughlin, Clarke and Lambert, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  