
    May A. Thompson, Respondent, v. John R. Thompson, Appellant.
    
      Party—an administrator, withholding on a settlement of the estate-a sum to pay a tax — he cannot, after he has been released as administrator by the next of kin and a decree entered settling the estate, be sued therefor in his individual capacity.
    
    The administrator of an intestate’s estate, with the consent of all the next of kin, set apart §600 of the assets of the estate in order to meet a possible demand, for an inheritance tax and agreed to return-it to the next of. kin if it should not be needed for that purpose. The balance of the estate was then distributed among the next of kin, each of whom executed to the administrator a written release, under seal, acknowledging the receipt of his or her full distributive share and releasing and discharging the administrator arid the estate from any ■ further liability. Pursuant to a provision contained in the releases such releases were filed in the .Surrogate’s Court and a decree was entered thereon judicially settling the administrator’s account and discharging him from all liability. No inheritance tax was ever assessed against the estate.
    
      Held, that one of the next of kin of the intestate, who was entitled to a one-tenth share of the estate, could not maintain an action against the administrator to recover §60, being, her share of the §600 retained by him;
    That the administrator still retained such §600 as administrator and that his liability, therefore, was as administrator only. •
    Pürsman and Kellogg, JJ., dissented.
    
      Appeal by the defendant, John E. Thompson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 16th day of September, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of September, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    The defendant was the administrator of the estate of John Thompson, deceased. The plaintiff, as one of his next of kin, was entitled upon distribution to a one-tenth share thereof. In- May, 1893, the parties interested got together and mutually agreed upon the total sum which was in the defendant’s hands as administrator to be distributed. Each of such parties thereupon executed to the defendant a written release, under seal, acknowledging the receipt of the full distributive share due to each, respectively, and of all moneys due, or to become due, from said estate, and in full payment and satisfaction of all claims held against such estate or the administrator thereof, and releasing and discharging him and the estate from any further liability. Such release also contained an agreement that the same might be filed in the Surrogate’s Court, and that upon it a decree might be entered, without citation and without filing any further account, judicially settling the defendant’s accounts as such administrator and discharging him from all further liability as such. It also contained a covenant to save the said defendant harmless and to indemnify him from all cost, trouble and expense on account of the payment therein acknowledged. Such releases were duly acknowledged and filed with the surrogate, and a decree was thereupon entered declaring his accounts settled and discharging him from further liability as such administrator.
    The plaintiff was present at such settlement and executed one of such releases. Subsequently in November, 1899, she brought this action to recover from the defendant the further sum of sixty dollars, which she claims the defendant on the occasion of the settlement promised to pay to her in the event that no collateral inheritance tax was thereafter assessed against it; that the defendant’s promise then made was a personal one, and that the release then executed by her runs to him as administrator only ; and, therefore, does not at all affect this claim. The trial court so held, and the jury rendered a verdict in her favor for such amount and interest. .From the judgment entered thereon, and from the order denying a new trial upon the minutes, this appeal is takem
    
      Charles L. Andrus, for the appellant.
    
      Andrew J. McNaught, Jr., and John P. Grant, for the, respondent.
   Parker, P. J.:

If the balance which at the time of the settlement was found to be due from the defendant as administrator included the $600 which the complaint claims was then entrusted ” by the next of kin to the defendant to meet a possible demand for an inheritance tax against the estate, then it might perhaps.be argued.that a retention of the same by the defendant, and- a release therefor, was equivalent to a receipt by him of their money, advanced by them to protect him personally against such a claim; and his promise to repay the plaintiff sixty dollars thereof as the amount so deposited by her, in the event that he did not have to use the same, might be considered a promise made by the defendant, in his individual character, under an arrangement made subsequent to the transaction to which the . release referred. It might then be considered that she had received the sixty dollars and receipted for it, and had thereafter returned it to the defendant for the purpose aforesaid. Such a subsequent arrangement would not be affected by the release.

But the fact, as it appears from the evidence introduced in her behalf, is, that, the defendant deducted the sum of $600 from the assets before the balance for distribution was agreed upon. The share then agreed to be due her, and upon the payment of which to her she executed the release, was ascertained upon the theory that it did not include any part of the $600. He deducted that as a possible necessary expenditure, before he struck the balance for distribution, and so such $600 was no more nor less than assets of the estate left in his hands for subsequent distribution. ' He retained it solely as administrator, and I am at a loss to understand why he does not still hold it as such. He received it from the estate as part of its assets.' According to her claim, as it appears, upon the trial, he has never yet distributed it, and, therefore, his liability to. account for and pay it over is that of an administrator only.

From this view of the transaction — and which is the one stated by the respondent in her points—it is manifest that the plaintiff is not entitled to maintain this action.

Her claim is squarely in conflict with the release which she then executed. Such release and the surrogate’s decree subsequently entered is a flat bar to her recovery here, and on the evidence before it the jury was not warranted in rendering the verdict which it did render. Alb objections and exceptions necessary to raise this question were taken by the defendant upon the trial. The judgment and order, therefore, must be reversed and a new trial granted.

All concurred, except Fursman, J., dissenting in an opinion in which Kellogg, J., concurred.

Fursman, J. (dissenting):

One John Thompson having died intestate the defendant was duly appointed sole administrator of his goods, chattels and credits, qualified and entered upon his duties as such. He was one of the heirs at law and next of kin of the deceased. Something more than a year after such appointment he and the other heirs and next of kin met together for the purpose of settling up and distributing the estate. At that time the defendant kept back from the distribution the sum of $600 upon the claim that it might be required to pay an inheritance tax. This was consented to by the. plaintiff and other next of kin upon the express promise of the defendant that in ease the money was not needed for the purpose mentioned he would pay to each his or her share thereof, being $60, the sum sued for in this action, and thereupon distributed the remainder of the estate. Under this arrangement and in consideration of this promise the plaintiff executed and delivered to the defendant a full release and discharge of “ all moneys due or to become due” from the estate or the administrator thereof.”

This paper contained also an express consent that a decree, without an' accounting of the administrator being had and without citation or notice, might be entered in the Surrogate’s Court settling the estate and discharging the administrator. Like papers were executed and delivered to the defendant by the other next of kin. Thereupon the defendant petitioned the surrogate to be released and discharged as administrator, and without notice or citation a decree was entered finally settling the accounts of the administrator and releasing. and discharging him “ from all further liability as such administrator.” These facts were found by the jury (the verdict having been for the plaintiff) upon sufficient evidence and under proper instructions. There was no inheritance tax to be paid and none is possible, ,

What was it the parties intended to accomplish by this settlement? Certainly not any continued liability of the administrator as such, for it was at the same time and as part of the same transaction agreed that the defendant should be discharged from all liability as administrator for this money, and a ■ paper was executed fully releasing and discharging him therefrom. Yet he has in his hands sixty dollars of the plaintiff’s money which he promised to pay o yeito her in case it was not used for a certain, specified purpose. It is true that this was a part of the testator’s estate, blit at the time of the settlement it belonged to the plaintiff, and her consent that the defendant retain it and be. discharged as administrator notwithstanding was given only upon his promise to pay it over unless required for the specified purpose. This" promise was not made by him as administrator, because it was understood that liis- accounts as administrator were then and there fully settled, that he was to be at once discharged, upon the consent of all parties, by a final decree of tlie surrogate from all further duties and obligations of his office, the estate deemed fully distributed and his official relation thereto ended. This .money was, therefore, no longer a part of the estate nor in the hands of the defendant as administrator. In what capacity, upon what agreement or understanding then, does he hold it ? Not as administrator, because he is not administrator, nor as part of the estate, because he could rightfully hold that only as. administrator. Moreover, it was clearly contemplated and understood by the parties that his accounts as administrator were then and there settled, a final distribution of the estate then made, and all liability as administrator ended. It seems to me clear that his agreement to pay was made and accepted as his -personal agreement. Upon no other theory can it be reconciled with the terms of the paper, executed by the plaintiff at the same time and as a part of the same transaction by which she acknowledged the receipt of her full distributive share of the estate and consented to the discharge of the defendant-from his office. If he should be sued as administrator it would be a sufficient answer that he had been duly discharged from that office and from all liability as administrator upon the consent of the plaintiff. The final decree cannot be opened, because there was neither mistake nor fraud in procuring it. He has sixty dollars of the plaintiff’s money which in equity and good conscience he ought to pay to her. The promise to pay the money in case it was not needed for an inheritance tax was an independent agreement and proof of it did iiot tend to contradict the writing executed by the plaintiff (Chapin v. Dobson, 78 N. Y. 74; Dodge v. Zimmer, 110 id. 43); and his release from all liability as administrator was a sufficient consideration therefor. (Andrews v. Brewster, 124 N. Y. 433.) The defendant repudiates all liability, both personally and as administrator, and unless he is held personally liable upon his promise, the plaintiff is remediless. For thése reasons I think the judgment should be affirmed.

Kellogg, J., concurred.

Judgment and order reversed, and new trial granted, with costs to appellant to abide event.  