
    In the Matter of the Judicial Settlement of the Account of Sarah J. Rossell, as One of the Executors, etc., of Elizabeth Gamble, Deceased, by Isaac S. Rossell and James Young, as Executors, etc., of said Sarah J. Rossell, Deceased, Respondents. George W. Gamble, Individually and as Administrator with the Will Annexed of Elizabeth Gamble, Deceased, and Others, Appellants.
    Third Department,
    September 26, 1907.
    . Executor and administrator—accounting — facts insufficient to show possession of legacy — appeal—power of court to find facts.
    Evidence examined and held to be insufficient to show that á legacy payable to an executrix was in the hands of her coexecutor.
    On appeal from the Surrogate’s Court the Appellate Division may make any ■ decision as to the facts which the surrogate could have made.
    Appeal by George W.. Gamble, individually and as administrator, etc., and others, from a decree of the Surrogate’s Court of the county of Sullivan, entered in said Surrogate’s Court on the 12th day of November, 1906, judicially settling the accounts' of the personal representatives o:. the deceased executors of the last will and testament of Elizabeth Gamble, deceased. .
    
      D. S. Hill and F. S. Anderson, for the appellants.
    
      Smith & Tomlinson [Henry Willis Smith of counsel], for the respondents.
   Cochrane, J.:

Elizabeth Gamble died in 1897, leaving a last will and testament which was duly admitted to probate and wherein were nominated as executors her husband, John Gamble, and her daughter, Sarah' J. Bossell. These executors duly qualified, but have filed no inventory, and their accounts as executors were never judicially settled. Sarah J. Bossell died in June, 1904, and her husband, Isaac S: Bossell, and James Young are the duly qualified executors of her last will and testament. John- Gamble died in November, 1904, and the said Isaac S. Bossell. and George W. Gamble are.the duly qualified executors of - Ms last will and testament. George W. Gamble has also been appointed administrator with the will annexed of the said Elizabeth Gamble, deceased. Different proceedings were subsequently instituted with a view to an accounting by the representatives of the deceased executors of said Elizabeth Gamble, deceased, Such proceedings were consolidated and resulted in the decree now under "review, wherein it. was determined. that all of the assets of the estate of Elizabeth Gamble, deceased, were in the hands of John Gamble at the time of his decease; that such assets in the hands of said John Gamble amounted to $17,675,99; that the .said John-Gamble was entitled to credits amounting to $1,135.45, leaving a balance in his hands at the time- of his. death of $16,540.54, which his executors were directed to pay over to the administrator with the will annexed of the said Elizabeth Gamble, deceased.

The will of Elizabeth Gamble was. executed in the year 1892. By such-will she only assumed to dispose of a bond' and mortgage for $10,500, known as the McCann mortgage. . She bequeathed absolutely a legacy of $2,000 to each' of her .executors. She bequeathed $6,000 in trust to the executors to apply- the interest thereof -during the life of her husband to the support'of her three sons, and after the death of her husband each son was to have $2,000 absolutely. She bequeathed $500 to her executors in trust, to pay the same to her granddaughter, Jennie Gamble, when she arrived at the age ef twenty-one years, the executors to- have the income thereof in the meantime. At the time of the death of the testatrix'in 1897 she not only owned the McCann.mortgage, but she also had deposits in .various savings banks in. Mew York city,' amounting in the succeeding January-to $3,694.34, with all of which the-estate of John Gamble has been-charged herein. The McCann mortgage was;' subsequently paid to the executors. Five hundred dollars thereof was used to pay the legacy to Jennie Gamble. - The balance of $10,000 was reinvested in a bond and mortgage taken in the name' Of the executors of Elizabeth Gamble, deceased, and is included in the amount with which the estate of Jolm Gamble is charged herein. All of the interest on tins mortgage investment, with the possible exception of six months’ interest, is traced directly into the hands of John Gamble, and his estate has been properly charged therewith.

A more serious question arises concerning the savings banks accounts. On January 25, 1898, the two executors, by their joint receipt, drew from the Dry Dock Savings Institution $2,504.95 belonging to the estate of their testatrix. At the same time, on a receipt signed by both of the executors, there was drawn from the same bank $1,607.51, being the amount of an account in the following form: “for John Gamble, Sr. Elizabeth Gamble in trust,” which account has been treated herein as the individual account of John Gamble. On the same day John Gamble deposited in the same bank to his individual credit $3,000, and Mrs. Eossell deposited to her individual credit $1;000. Within three days thereafter, on similar receipts signed by both executors, there were drawn from the other savings banks the remaining deposits of the said Elizabeth Gamble, deceased,, amounting to $1,189.39. At' this point in the history of these savings banks accounts the record stops. If we assume that the. $3,000 deposited by John Gamble to his individual credit on January 25,1898, was made up wholly or in part of money belonging to Elizabeth Gamble, deceased, we must also make the same assumption concerning the" deposit on the same day of Mz-s. Eossell. And in reference to the moneys drawn from the other bazzks there is not the slightest clue as to the disposition made thereof. Looking at the matter in any aspect it is impossible to trace all of these savings-banks moneys into the hands of John Gamble, and the amount which the evidence fails to show that he actually received exceeds the legacy of $2,000 which Mrs. Eossell received under the will of her mother. As to so much of the estate concerning which the evidence ■ is silent we are compelled to rest entirely on the presumption arising from the situation or the probabilities suggested by the circumstances. After the death of Mrs. Eossell, John Gamble gave a receipt for certain property and papers in his possession and received by him. '' This receipt, however, does not purport to deal exclusively with the estate of Elizabeth Gamble, deceased. On the contrary, it includes matters which concededly had no refezence to such estate and it throws no light on the question with which we are now confronted. The legacy of $2,000 bequeathed to Mrs. Eossell belonged to her absolutely and by the terms of the will was due whenever the executors chose to convert the assets into money. It is evident that they did not contemplate any judicial settlement. Nearly seven years had elapsed between her mother’s death and her own death. The evidence shows that in the meantime she gave to her coexecutor individually a bond and. mortgage and paid the interest thereon. It is unreasonable to suppose that she would thus become obligated to him and at the same time permit him to retain in his possession a legacy which was her absolute property and to the use of which’she was entitled. It was not John Gamble’s duty at any time to take into his possession this $2,000 legacy and he had no right to it to the exclusion of Mrs. Eossell. Inasmuch as it was her individual property no presumption arises that he had it at the time of her death, seven- years or thereabouts after she became entitled to it and it is unreasonable to suppose that her husband paid it to him at the tiine the receipt was given after her death nor does he claim'to have done so. The decree adjudges that said $2,000 legacy of Mrs. Eossell was- in the hands of John Gamble at the time of his death and to this extent such decree is erroneous. Section 2586 of the Code of Civil Procedure empowers this court to make the decision which should have been made by the surrogate. . " .

Said- decree should, therefore, be modified so as to adjudge that ■Mrs. Eossell has received her said legacy of $2,000, and deducting said amount from the balance directed to-be paid over by the executors of John Gamble, deceased, to the administrator with the will annexed of Elizabeth Gamble, deceased, and as so modified said decree should be affirmed, with costs to both parties payable out of the estate of said Elizabeth Gamble, deceased.

Decree modified in accordance- with opinion, and as so. modified unanimously affirmed, with costs to both parties payable out of the estate of Elizabeth Gamble, deceased.  