
    Jennie V. Bellinger, Adm’rx of Betsy D. Bellinger, App’lt, v. George B. Potter, Ex’r, of George Potter, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 20, 1891.)
    
    Executors and Administrators—Inventory—accounting.
    Testator’s will declared that he had conveyed certain land to defendant, which was intended as a bequest of a less sum, leaving in his hands §1,400, for the use of which he was to pay §70 per year, and bequeathed §1,000 thereof to either of his children who should care for him in his last sickness, and the balance to defendant’s wife. Defendant, as executor, charged himself in the inventory with said sum of §1,400. On the trial of an action to compel payment of a legacy the defendant introduced in evidence an instrument executed by him on receiving the deed by which he agreed to pay testator §70 per year for life, and that in case he sold the property and testator preferred the payment of §1,000, to pay the same on demand, in lieu of such yearly payments. The referee held that defendant was not chargeable .with said sum of §1,400 and should be credited with $1,000 paid to one of the children for care of testator in his last sickness. Held, that the strong presumption furnished by the inventory was not overcome and that the referee erred in allowing from the general estate the amount paid for care.
    Appeal from a judgment entered in Oneida county on 11th February, 1890, upon the report of a referee in favor of defendant, without costs.
    Action for a legacy of $4,000, given to plaintiff’s intestate, Betsey D. Bellinger, in the will of George Potter, who died April 26, 1869. The will was proved and letters testamentary issued to the defendant on May 25, 1869. The executor has never had a judicial accounting except in this action. The legatee, Betsey D. Bellinger, died August 6, 1885, and letters of administration were issued to the plaintiff on the 7th March, 1889. This suit was commenced soon after.
    The referee found that on the 17th October, 1871, the defendant, by the consent and direction of the legatee, transferred to Hathan Bellinger, the husband of .the legatee, a mortgage of $1,980 on account of her said legacy. He also found that, upon a statement of the account of the executor, there was only the sum of $834.73 properly applicable to the payment of general legacies, and that of this sum $830.47 was the pro rata amount applicable on the legacy of plaintiff’s intestate. So that, therefore, the legatee was in her lifetime largely overpaid.
    
      JE. 0. Worden, for app’lt; J. S. Baker, for resp’t.
   Merwin, J.—The

evidence is sufficient to sustain the finding

of the payment of $1,980 upon the legacy. The claim, however, of the plaintiff is that numerous errors to her prejudice were made by the referee in stating the executor’s account.

In the will, which is dated June 1, 1868, there is the following clause:

Third. Having deeded to my son, George B. Potter, the homestead farm, containing 128 acres of land, said deed bearing date the 5th day of February, 1868, and said premises being valued at the sum of $6,400, and the amount intended as.a bequest being $5,000 to the said George B. Potter, leaving in his hands the sum of $1,400, for the use of which the said George B. Potter agreed to pay the yearly sum of seventy dollars during the life of the undersigned testator, or if he sold said premises during the life of said testator, then in case of demand of said testator he was to pay the sum of $1,000 to him.

If this sum of $1,000 is not demanded or paid in my lifetime, then it is my will and wish that in case I should be cared for in my last sickness by either of my other children, and my funeral expenses borne and paid by them, they shall receive the said sum of $1,000, but should the said George B. Potter care for me in my last sickness and pay funeral expenses, etc., then he is to keep in possession the same; and further, I give and bequeath to Frances Potter, wife of the said George B. Potter, the above referred to $400, to be paid her by the said George B. Potter.”

In the inventory of the estate which was made by the defendant and filed in the surrogate’s office on October 5, 1869, there is the following item:

“Demand against George B. Potter, the executor, for part price of farm conveyed to him by testator in his lifetime.......................... $1,400 00
“Interest on $1,000 from February 5, 1869, to date of inventory................................ 26 59
“ Due and collectible....................... $1,426 59.”

At the trial the defendant put in evidence a paper which, as he testified without objection, was executed by Mm at the same time as the deed, and of which the following is a copy:

Whereas, George Potter has this day deeded to me 128 acres of land, and whereas said conveyance was made in consideration of an amount less than expressed in said deed of conveyance, therefore be it known that I., G. B. Potter, do obligate myself, in consideration of said conveyance, to pay to the said George Potter the sum of $70 per year during the term of his natural life, but if the said George Potter should see fit to come and live with me, then I am not to pay said $70 such years as he may do the same.
“ And I do further agree, that in case I should sell said premises, and the said George Potter would prefer the payment of $1,000 in lieu of the aforementioned sum of $70 per year, to pay the same on demand, but in case of the payment of the said sum of $1,000, then the payment of the yearly sum of $70 is to cease.
“ Dated this 5th day of February, 1868.
“In presence of G. W. Davis. “G. B. Potter.” [seal.]

It appears that the deed referred to was dated February 5, 1868, and the consideration expressed therein was $5,000. What was done with the paper signed by defendant after its execution does not appear. .

The $1,000 was not demanded in the lifetime of the testator, nor was the farm sold until after his death. The referee held that the defendant was not chargeable with the item of $1,426.59, and should be credited with the sum of $1,000 which he paid to Lura A. Spink, one of the children of the testator, for care of him during his last sickness and his funeral expenses. This payment was allowed upon the theory that the intent of the testator was to have this paid in any event, although the fund specifically referred to may have failed.

Assuming that the item of $1,426.59 was a valid debt against the defendant, the plaintiff would not be entitled to any benefit from it, as it was specifically appropriated by the will. But in that case, the defendant would not be entitled to credit from the estate generally for the $1,000 which he paid for care. It therefore becomes material to determine whether defendant is bound by the item as entered in the inventory. The circumstances under which the inventory was made do not appear. We must, therefore, assume it was purposely made as it was and with a full understanding of its contents. The claim of the testator, as shown by the will, was known to the executor and was yielded to. It is not made clear that the paper signed by the defendant contained the entire agreement. The testator evidently understood that there was, at least, $1,000 in the defendant’s hands. I am of the opinion that the strong presumption furnished by the inventory is not overcome, and that the referee erred in allowing the defendant from the general estate the amount he paid for care. See Matter of Camp, 32 N. Y. State Rep., 336.

The plaintiff further claims that the defendant should have been charged with the amount of a mortgage given by John Spink for $1,000. This was specifically bequeathed by the testator to Lura Ann Spink, the wife of John Spink, and appears to have been transferred to one Mace by the defendant, and the proceeds or a portion thereof used in payment of debts against the estate. It is quite evident that this was done with the consent of Mrs. Spink and her husband. The latter had a portion of the proceeds. Under what arrangement the transfer was made, it does not appear. There is nothing to show that the legacy was waived or abandoned by the legatee for the benefit of the estate. If the defendant used it, presumptively he has accounted or is bound to account to Mrs. Spink for it. The plaintiff has no claim on it.

The plaintiff claims that the defendant should be charged in his account with another mortgage against John Spink for $203.48. The case shows that he was so charged, but was credited back with the sum of $43.66, which Spink paid on the notes given by the testator when he purchased the mortgage, thus reducing the amount for which the estate could properly hold the mortgage against Spink. It in effect was the same as if Spink had paid that amount to the prior holder of the mortgage.

The defendant is credited with $270.80 for uncollected debts in the inventory. Ho error is made apparent as to this, especially in view of the provision of § 1833 of the Code of Civil Procedure, that in an action like this an executor shall not be charged with a demand or right of action, included in the inventory, unless .it appears that the same had been collected, or might have been collected with due diligence.

The plaintiff further claims that in several instances the referee has allowed the defendant payments on debts which in whole or in part were not justified by the evidence.

It has been held that the verified accounts of an executor, with vouchers for the payments made, raise the presumption that the payments were properly made, and that the burden of impeaching the payments is then on the party objecting. Metzger v. Metzger, 1 Brad., 265; Bainbridge v. McCullough, 1 Hun, 488. In view of this rule, we find no substantial ground for the plaintiff to complain, except in the case of the debt of N. B. Foot & Co., which the referee allowed at $2,657.86. A voucher for this sum was produced by the defendant upon an account in form against the estate. This account seems to have been mainly for goods sold by Foot & Co. to John Spink as agent for the deceased in running a store, and of indebtedness of Spink assumed by the deceased in connection with the purchase of the store. There was no question as to Spink’s agency.

Mr. Foot testified that the books of his firm showed charges against John Spink, as agent, after April 25, 1869, of a total of $1,340.55, and that the payments, making up the total of $2,657.86, paid those charges in full. The argument of the plaintiff is that the credit to defendant should be lessened by the sum of $1,340.55. It is shown that in the amount'of $1,340.55 there is only one item of merchandise after April 25th, and that is May 4, 1869, $130,81. It is not shown that any other item arose after Mr. Potter’s death. On the contrary, the inference from the evidence is that the other items making up the balance of the $1,340.55 were items carried along upon the books of Foot & Co. and arising from the business which Spink conducted as agent for the deceased, or were debts of Spink assumed by the deceased. It follows that in this transaction there should be a deduction of $130.81 from the defendant’s credit, but no farther.

The foregoing considerations would require that the credits to the defendant should be lessened by the sum of $1,130.81. So that the defendant, instead of having in his hands, applicable to the payment of general legacies, the sum of $834.73, as found by the referee, would have the sum of $1,965.54, of which about the sum of $1,956 would be applicable on the $4,000 legacy. This being less than the legatee in fact received, nothing would be due the plaintiff.

Several rulings of the referee upon evidence are challenged by the appellant. Among others it is claimed that error was committed in allowing Clark Mace to state conversations that he had with Betsey D. Bellinger in relation to payments made to her from her father’s estate. The objection was that Mace was incompetent to testify as to those conversations, under § 829 of the Code of Civil Procedure, by reason of his interest under the will in a legacy given to him and his wife. That legacy was a specific one and cannot be reached or affected by the subsequent general legacy to Mrs. Bellinger. Mace is not a party to the action and is not interested in the event within the rule laid down on that subject. Hobart v. Hobart, 62 N. Y., 83.

It is not necessary to consider the other rulings in detail There are none that furnish a good reason for reversal. The judgment ■should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.  