
    In the Matter of the Judicial Settlement of the Account of Joseph Gabriel, as Executor, and Elizabeth Fritz, as Executrix, of the Last Will and Testament of Catharine Gabriel, Deceased. Joseph Gabriel and Elizabeth Fritz, Executors, etc., Appellants; Jacob Gabriel, Legatee, Respondent.
    Decree of Surrogate’s Court affirmed, with costs.— Appeal from a decree of the surrogate of Kings county upon an accounting by the executors of the estate, which decree surcharged the account by the several items specified therein.—
   Hatch, J.:

It is not necessary for us to examine in detail the evidence-from which the learned referee reached his conclusion that the accounts of the executors should be surcharged with the items of money and property received for which they have rendered no account.^ The learned surrogate adopted the conclusions of the referee, and entered the decree charging to the executors the several items, and personally the costs of the proceeding. The very full and complete discussion which accompanied the report of the referee leaves nothing to be said in support of the reasons which induced him to hold the executors liable for the amounts with-which their account is surcharged. His con-* elusion in this regard has abundant supports in the testimony, and after a careful reading of the record and the brief submitted by the learned counsel for the executors, we not only see no reason for disagreeing with the conclusion of the learned referee, bufare confirmed in the view that such conclusion is correct. It only remains for us to see-if any error has been committed in the admission of testimony which calls for a reversabof the decree, or whether any error" or injustice has been committed in charging* the executors personally with costs. The case in favor of the contestant was in large-measure made up by the testimony of the executors themselves, whom the contestant was obliged as well as entitled to call to give evidence concerning their transactions with the property of the estate. The largest item-in the account was a sum of $4,000, the proceeds of a certain mortgage which was-paid just prior to the death of the testatrix. At the time of such payment the testatrix was bed-ridden, nearly blind and clearly unable to transact any business; the executors were at that time and had been for* sometime prior thereto taking charge of the* estate, and performing such áets in connecr tion therewith as were by 'them deemed necessary for its preservation. The $4,001?* was traced into the hands of the executor, Joseph Gabriel, and from that time, so far* as appeared in any deposit in the bank or in-any account or written memorandum, this-money disappeared. Upon the cross-examination of Joseph Gabriel he was asked j “You testified that upon your father’s death-he had in his possession a mortgage made by Mr. Schlitz for four thousand and odd dollars, and you further testified that that* mortgage was not mentioned in your account filed in this proceeding. Now wilt you please state why ? ” This was objected to as irrelevant and incompetent, and also*for the reason that it was an attempt to* draw out a personal transaction with the-deceased, and was, therefore, improper* under section 829 of the Code of Civil Procedure. The objection was overruled^ and the-witness answered: “It was paid to my mother by Mr. Schlitz.” Counsel for contestant thereupon moved to strike-out the^ answer; the motion was granted, and counsel for the executors excepted. It is now claimed that this ruling was error. We think: otherwise, for two reasons: Mr$t, the question itself was improper, and called for incompetent testimony. What his reasons-were for not putting these items into the-account was not material. If any testi mony upon this subject was proper, it should have-been directed to the property which the .executor had received from the estate; and as-the $4,000 item was then under consideration, it was competent and proper to show any facts which established that such item-was not a proper one with which he should be-charged. His reasons for not putting it into-the account were of no consequence if he-showed that he was not properly chargeable with that item, and the reasons why he left it out, if he was so chargeable, could not possibly affect the result. The-objection might properly have been sustained upon this ground. It may be conceded that the ruling was erroneous in so-far as it struck out the answer of the witness-that the money was paid to his mother by Mr. Schlitz, the mortgagor. If .the transaction had been that the mortgagor paid the money to the mother during her lifetime,, it would have been competent for the executor to so testify, as it would not involve a personal transaction with the deceased. But if we assume that the testimony was improperly stricken out, no prejudice therefrom resulted to the executor, as subsequently the whole transaction with respect to the payment of the $4,000 was developed. The testimony of the executor Gabriel liim•self shows that while the money was paid .during the lifetime of the mother, yet he in fact received the same, and he was per.mitted to testify that he gave that sum to .his mother. This last was clearly ,a personal -transaction and is not competent; but it was received without objection and remains in the record as part of . the testimony. Consequently no prejudicial error can be -predicated of this ruling. It is undoubtedly -the rule of law that testimony may be received of a personal transaction between a .deceased person and a person sought to the charged, where such testimony tends to «qualify or explain evidence theretofore received which has been drawn out by the examination in chief and which forms a part .of t-he whole transaction. Such is the case of Nay v. Curley (113 N. Y 575), and other ’kindred cases. Such rule cannot find application here, either as to the ruling now -under consideration or as to similar rulings -where the same question was raised as to •this witness and his coexecutor. The executors themfselves, in so far as they were iSought to be charged with the respective tsums with which the decree charges them, were witnesses in hostility to the contestant, and, therefore, he should not be held concluded as having opened the door to ;Such testimony unless he comes clearly ■within the exception which would entitle the .¡executors to give in evidence their personal -transactions with the deceased. Here no ;such condition existed. The $4,000 item, its source and its payment were established clearly and beyond dispute by testimony •independent of the executors, and by the «executor Joseph Gabriel himself. He was -permitted to testify to any memorandum, -to any deposits or to any entry in any hook, •which would show, or tend to show, what ‘became of the $4,000. He had testified, and -the evidence was clear beyond dispute, that .at the time When this money was received Jiis mother was in a physical condition which ¡incapacitated her for the transaction of ^business, and he and his sister, the co-executor, had the custody, control and management of the property. The referee ruled constantly, consistently and continuously -throughout the case, that either executor might produce any testimony which was Available to them to account for this sum of money, or any other, with the single exception that he excluded the personal transaction had between the deceased and the executors in respect thereto. But it is clear, -in all of the instances where such ruling was made, that the testimony was incompetent -under section 829 of the Code, and in no case are we able to find by the course of the .direct examination that the door was so far -opened as to permit such testimony to be ¡received. So far as these rulings have been urged before us as constituting error in refusing to permit the co-executor Mrs. Fritz -fco testify, are concerned, the same Observa-¿ions which we have heretofore made as to Joseph Gabriel’s testimony apply to her case. In the ruling claimed to be erroneous, 3Urs. Fritz was permitted to, and did, testify -¡¿hat the items of money with which she was sought to be charged did come to her hands, ¿and it was only as to the personal transaction with the deceased that she was restrained from answering. We find, therefore, no error in the rulings of the referee in this regard. Nor was the testimony sought to be elicited from Mrs. Fritz available as showing the creation of a trust for distribution among the poor of the moneys in the savings bank, or for any other purpose. It is quite clear that the evidence which was permitted to be received as tending to establish a trust of these monéys, would not be sufficient to create a trust, especially in view of the fact that it was conceded that the property of the testator came from her husband, and that she desired to distribute it.among the children ■ share and share alike, for the purpose of carrying out his wishes in respect to its disposition. Under such circumstances ' it would require clear and convincing proof before the court would be authorized to support a trust of a part óf such moneys where the will made clear disposition of all the property. But no trust of these moneys could be established except it be based upon some direction given by the testatrix to Mrs. Fritz, and that would clearly constitute a personal transaction, as much as would any other direction made by her for the disposition of the moneys. The reason for putting the hank book in the name of the testatrix and Mrs. Fritz, as the referee has found, was clearly for the purpose of convenience and not with any intent to create a trust, nor did such act have the effect of creating one within the authorities cited by the referee; consequently, in no view of the case could the testimony of Mrs. Fritz, as to the personal transactions with her mother, be received. We reach the conclusion, therefore, that no errors—certainly none of substance—were, committed by the referee in the rejection of testimony, and we also think that the conclusion reached by him was eminently fair and just. The only remaining question to be considered is • the determination by the learned surrogate which charged the executors personally with the costs of the proceeding. No one can read the testimony without being impressed with the fact that these executors have been grossly negligent in the management of this estate, and this states the matter in as mild terms as the case will permit. The items which were withheld from the account, and which properly belong to this estate, were of substantial amounts, and the surrogate would have been justified in concluding that the executors intended to appropriate these sums to their own use, and withhold them from those to whom they properly belonged. Under such circumstances the surrogate was justified in charging the costs and. expenses of the proceeding upon the executors personally. (Code Civ. Proc. §§ 2557, 2558; Estate of Mull, 16 N. Y. St. Repr. 981; Kearney v. McKeon, 85 N. Y. 136.) It follows that the decree of the surrogate should be affirmed. All concurred.  