
    In the Matter of the Judicial Accounting of Seth L. Warner and John S. Warner, the Executors of Flora S. Brundage, the Deceased Executrix of the Last Will and Testament of Hiram W. Brundage, Deceased. James B. Stratton, as Administrator with the Will Annexed of Hiram W. Brundage, Deceased, Appellant; Seth L. Warner and John S. Warner, as Executors of Flora S. Brundage, Deceased, Respondents.
    
      Note, given by a husband to provide for his wife after his death — effect thereon of a subsequent will making adequate provision for her — effect of a permission to give away a sum “ the same as if the property were her own” —duty of the Appellate Division to find fads on an appeal from a surrogate’s decree.
    
    A note made by a husband to bis wife, intended as a provision for her after his death, where the husband subsequently makes a will in which there is adequate provision for her, and it does not appear that the wife ever, before her husband’s death, knew or heard, or had possession of, or received any payment upon, the note, which, so far as appears, was never actually delivered to her, cannot be regarded as a debt existing against the husband’s estate at the time of his death.
    A clause in her husband’s will empowering her “to give away not exceeding fifteen hundred dollars, if she chooses, the same as if the property were her own,” authorizes her to dispose of that sum by will. Under section 2586 of the Code of Civil Procedure, conferring upon the Appellate Division the same power to decide matters of fact as a surrogate, the duty of the appellate court is not limited to the consideration of the question whether there was sufficient evidence to support the decision of the surrogate, but the Appellate Division should decide for itself whether the surrogate correctly determined the facts.
    Appeal by James B. Stratton, as administrator with the will annexed of Hiram W. Brundage, deceased, from so much of a decree of the Surrogate’s Court of the county of Steuben, entered in said Surrogate’s Court on the 18th day of December, 1899, as provides :
    
      First. That the executors of Flora S. Brundage retain out of the Hiram W. Brundage estate the sum of $5,539.91 to pay the note of Hiram W. Brundage remaining unpaid ; and,
    
      Second. That said executors retain the sum of $1,695.50 to pay the $1,500 which Flora S. Brundage was allowed to give away by the will of.Hiram W. Brundage ; and,
    
      Third. That said executors retain the sum of $150 to pay $150 balance of exemptions which Flora S. Brundage did not have set off for her own use while acting as executrix of her husband’s will.
    
      Fourth. That said administrator appeals from all portions of said decree which in any manner relate to the matters referred to in the exceptions filed ^herein.
    
      Fifth. That this appeal is taken both upon questions of law and of fact.
    
      John F. Parkhurst, for the appellant.
    
      Reuben R. Lyon and George T. Spencer, for the respondents.
   Williams, J.:

The parties are the personal representatives of the respective estates of the Brundages, who were husband and wife. The deceased left no children, but left brothers and sisters, respectively, who are interested in their estates under their wills. The husband died January 26, 1896, leaving a will, under which his wife was sole executrix. She had charge of her .husband’s estate as such executrix until October 16, 1896, when she died. The decree appealed from was made upon a judicial settlement by the wife’s executors as to her administration of her husband’s estate as executrix.

Three questions are raised by this appeal, viz.:

First. As to the allowance to the wife’s estate of §5,539.91 for principal and interest of a note for $3,500, made by the husband payable to the wife, bearing date August 1, 1884.

Second. As to the allowance to the wife’s estate of $1,695.50 for $1,500, which the husband by his will allowed his wife to dispose of as her own property, and interest thereon.

Third. As to the allowance to the wife’s estate of $150, balance of exemption to her as widow.

Fi/rst. As to the $3,500 note, it is claimed by the appellant that the evidence did not authorize the finding that the note was ever delivered to the wife or that there was any consideration therefor, or that it was an existing; indebtedness at the time the husband died. Counsel for the respective parties have in their points discussed the evidence bearing upon the allowance of the amount of this note as an indebtedness in great detail. We have examined the record carefully and have considered the arguments of counsel. We do not regard it as necessary to go over the whole ground and refer to the evidence in detail, but prefer rather to state the conclusions we have arrived at and some of the reasons leading to such conclusions.

It will be remembered that under section 2586 of the Code of Civil Procedure this court is vested with the same power to decide questions of fact which the surrogate had. Its duty is not limited ■to the question whether there was sufficient evidence to support the decision of the surrogate, but it should determine for itself whether the surrogate correctly determined the facts. (Matter of Rogers, 10 App. Div. 594.) These people were married December 25,1876. The husband was then thirty-two years of age and the wife, twenty-six years old. He was then living on his father’s farm, and she had been for some years teaching school. They lived on a farm until 1881, and then moved.into the village of Bath, where they lived until their deaths. He went into the grocery business in 1882 in partnership with one Lewis. In October, 1884, he purchased Lewis’ interest in the business and continued it alone until January, 1893, when he retired permanently from business. During his lifetime he accumulated quite a considerable property, upwards of $20,000. He vvas a close, careful business man, and his wife assisted him in his business.

She had a few hundred dollars at the time of their marriage, and received some $500 from her mother’s estate, and when she died had some $1,500 or $2,000 of her own property aside from this $3,500 note made by her husband. It is impossible that she could have had any money to loan her husband for which he gave her this note. If he ever gave it to her at all, it must have been a gift intended as a provision for her after his death. It was dated August 1, 1884, a few months before he purchased Lewis’ interest in the grocery business in October, 1884. So far as appears, he then had no will, and it may be fairly inferred that he made the note for the purpose indicated as a provision for his wife out of his property. Whether he delivered the note to his wife we cannot tell. April 1, 1890, the note was nearly six years old. It was payable one day after date and wras upon interest, and it would have been barred by the Statute of Limitations soon. On the 1st of April, 1890, he indorsed upon it interest paid to date. That renewed the note and avoided the Statute of Limitations. He may have regarded that as a proper thing to do, whether he had actually delivered it to his wife or had kept it in his own possession. Whether he really paid the interest to his wife for the six years may well be doubted. The amount of interest at six per cent would have been $210 per year, and, if the note was intended as a provision for his wife after his death, he may not have cared to have too much interest unpaid upon it when he died. One year later, April 27,1891, he made the will, which continued until his death in January, 1896. This will was a very adequate provision for his wife after he should die, and it was no longer necessary to keep the note in existence for that purpose. His wife had some little property herself, and by his will he gave her the use and income of all his property during her life with full power and authority to sell and convey the same and give good and sufficient conveyance thereof, and power to carry on any business he should be engaged in at his death, and to buy and to sell, and to give away, not exceeding $1,500, if she chose, the same as if the property were her own, and provided that in respect to the management thereof she should not be accountable to any one, nor be compelled to file an inventory, nor to give a bond, and he made her his sole executrix. The only other provision of the will was that should any of the property which she received from him, or the avails of any such property remain, he gave it to his brothers and sisters living at her death. This Avas a very favorable Avill for the Avife, and considering the amount of his property, over $20,000, and that he kneAv all the time until he died that this Avill Avas in existence, it is reasonable to suppose he no longer, after this Avill was made, regarded the note as an existing indebtedness to be paid from his estate after his death. Nothing was heard of the note before his death, and after his death it was found in an old unused safe that he had abandoned (except as a waste receptacle for old letters, and paid and receipted bills of his and his wife’s), from the year 1893, when he went out of business. He then purchased a neAV safe in Avliich he and his Avife apparently kept all their papers which they regarded as valuable. The note in this receptacle could no more be regarded as in the Avife’s possession than in her husband’s. It was among old papers belonging some to the one and some to the other. There is nothing in the evidence to indicate that the Avife ever kneAV or heard of the note before her husband’s death, unless we may presume she knew all about his provisions for her, the note, and the will, and even then Ave can hardly suppose that, after she knew of the will, she regarded the note as any longer a provision for her benefit. ' The transaction testified to by her brother, of the finding of the note and delivery thereof to her, tended to show either that she had no knowledge of the note before that time, or else regarded it as abandoned and valueless. When her brother called her attention to it and told her to keep it, she made no reply whatever. Said nothing about it. She in no way indicated that she knew about it, or regarded it as belonging to her. She gave no explanation of how it came to be in the old unused safe, among old letters and receipted bills of her own and her husband’s, or why she had not kept it in the new safe with her other valuable papers. We cannot say that the note was ever actually delivered to the wife, that she ever had possession of it or eArer received any payment upon it, and it is very evident that the note Avas not considered for some reason as an existing debt against the husband’s estate at the time of his death. To regard it as such is against all the probabilities arising from the evidence and the circumstances developed thereby.

We tliinlc this allowance to the wife’s estate should not have been made by the surrogate.

Second. As to the $1,500 which the husband by his will allowed the wife to dispose of, the language of the will is “ 1 also give her power -:«• * * give away not exceeding fifteen hundred dollars, if she chooses, the same as if the property were her own.” The other provisions of the will have been referred to in general terms above. It will be observed she was not limited in any way as to the time or manner of the gift. The husband was not careful to hedge her about in any of the provisions for her benefit. She was given the use of all his property, with power to sell and convey it, to carry on business and to buy and sell, and was not to be accountable to any one in respect to the management of the property, was not to be compelled to file any inventory or give any bond as executrix. And in the same liberal way she was allowed “ to give away not exceeding fifteen hundred dollars, * * * the same as if the property were her own.” If her own she could make a present gift or one by will to take effect at lief death. W e see no reason for the claim that the power to make the gift was confined to her lifetime and that she could not give it away in and by her last will and testament. The words here used, “ the same as if the projjerty were her own,” are not found in any cases referred to by counsel, are new, and we feel at liberty to give a construction to the provision that enabled her to dispose of the $1,500 by her will; that she did dispose of this "amount by the will she left, made after her husband’s death, we cannot doubt. She stated therein distinctly that she accepted all the provisions in her husband’s will for her benefit, and made her own will, and gave the legacies therein, having in view such provisions in her husband’s will, and making the legacies payable as well from the property left by her husband to her as from her own property.

We conclude that the surrogate correctly determined this question.

Third. As to the $150, balance of exemption to the widow allowed to her estate, the provision for setting off the exemption to widows is contained in section 2713 of the Code of Civil Procedure, and is to be done in the inventory. By the terms of the will the widow who was made sole executrix could not be compelled to tile any inventory, and none was made or filed, and the exemptions were not, therefore, set off to her. Under section 2724 of the Code the surrogate by the decree made in the judicial settlement of the accounts of the executrix was empowered to make the allowance for the exemption, and lie did so by the decree appealed from. It was an allowance of what the widow was entitled to during her lifetime, and which belonged to her estate after her death. She being the sole executrix could hardly set off the amount to herself as widow, or pay herself out of the funds of the estate. The proper time to adjust the matter was on the judicial settlement of her accounts as executrix. We'conclude that the surrogate correctly determinéd this question.

The views here expressed lead us determine that the decree appealed from should be modified, so as to disallow the claim of respondents upon the §3,500 note, and as modified, should be affirmed, without costs of this appeal to either party against the other.

All concurred.

Decree appealed from modified so as to disallow the claim of the respondents upon the §3,500 note, and as thus modified affirmed, without costs of this appeal to either party.  