
    In the Matter of the Judicial Settlement of the Account of John Furniss, as One of the Executors of Mary Ann Bostwick, Deceased. William Furniss and Others, Appellants; Robert Furniss and Rose Furniss, as Executors, etc., of John Furniss, Deceased, Respondents.
    
      Surrogate—his power to turnan accounting instituted by the executors of a deceased executor into a judicial settlement — commissions taken by an execuW before their allowance by the surrogate—claim for board by a brother against the estate of his ■deceased sister —proof required to sustain it.
    
    Where one of two executors of a will dies, and his personal representatives institute a voluntary proceeding for the settlement of his accounts and bring all of the parties interested in the estate before the court, the surrogate has jurisdiction, under section 2606 of the Code of Civil Procedure, as amended by chapter 409 of the Laws of 1901, to turn the accounting into a judicial settlement.
    In such a case the court has precisely the same jurisdiction it would have had ■ if the letters of the deceased executor had been revoked during his lifetime and he had been called iipon to deliver up the assets of the estate remaining in his hands.
    The allowance of commissions to an executor is a matter tó be determined by the surrogate, and an executor has neither the power nor the right to pay or reserve commissions to himself until they have been ascertained and allowed in the manner provided by statute.
    Under section 2730 of the Code of Civil Procedure such allowance should not be made until the settlement of the estate.
    
      jSamble, that the proper remedy for such a payment by the executor to himself is to charge him with interest thereon from the date of its withdrawal.
    Upon an executor’s accounting the executor, who was a brother of his testatrix, presented a claim for board and attendance furnished to the testatrix for a period of five or six years, during which time she had resided with the executor and his wife. The only evidence tending to establish an agreement on the part of the testatrix to pay for such board and attendance was given by a son ■of the executor, who testified that he heard the testatrix say, upon an occasion when she had come into possession of a sum of money, that now she would be able to repay the witness’ father and mother for all that they had done for her, if not before, then after, her death.
    
      Held, that the relationship existing between the testatrix and the executor raised the presumption that the board and attendance were furnished gratuitously, and that the evidence was not sufficient to rebut this presumption.
    Spring and Williams, JJ., dissented.
    Appeal by William Furniss and others from a decree of the Surrogate’s Court of the county of Seneca, entered in said Surrogate’s ■Court on the 28th day of September, 1902, settling the accounts oí John Furniss as one of the executors of Mary Ann Bostwick, ■deceased.
    
      Henry E. Miller and Charles E. Opdyke, Jr., for the appellants.
    
      Frederick L. Manning and George E. Zartman, for the respondents.
   Adams, P. J. :

This is a voluntary proceeding instituted by the executors of the last will and testament of John Furniss, deceased, who was one of two executors of the last will and testament of one Mary Ann Bostwick, deceased, for the settlement of the account of their testator.

All the parties interested in the estate were before the court upon the accounting and consequently, under the provisions of section 2606 ■of the Code of Civil Procedure, as the same was amended in 1901 ■(Laws of 1901, chap. 409), the surrogate possessed jurisdiction to turn the same into a judicial settlement. In other words, the-court had precisely the'same jurisdiction it would have had if the letters of the deceased executor had been revolted during his lifetime and he had been called upon to deliver up the assets of the estate remaining: in his hands. (Matter of Richmond, 63 App. Div. 488.)

The account rendered by the petitioners contained six items of disbursements to which the appellants Jane Wight and Ann Derby filed objections, while the remaining appellants . filed objections; to the same items and also to the item of $2,000 paid by the executors to Jane Wight and Ann Derby. This last-named sum was-claimed to have been paid pursuant to the provisions of the will of Mrs. Bostwick, and at the time of such payment releases were executed by both of these legatees, each of whom subsequently sought by a suit in equity to have the same surrendered and delivered up upon. * the ground of fraud. These suits were pending at the time of the accounting, and for that reason, probably, the item of $2,000 was not embraced in the findings of the acting surrogate. The other items which were the subject of adjudication are as follows:

Commissions reserved to themselves by the executors... $234 05 Board and lodging furnished to the testatrix by John
Furniss.................................... 1,470 00*
Care and attention furnished by Jane Furniss, wife of
John Furniss.........;............ ..........._. Ill 78-
Paid I. Wellhauser, for headstone.............. ..... 85 00*
Paid John Furniss, expenses..................*.. . 37 52
Paid for care of cemetery........................ 50 00
$1,988 35

■ All these items, with the exception of that of thirty-seven dollars and fifty-two cents, paid for expenses ” by John Furniss, were-allowed by • the acting, surrogate, and this appeal brings up for review the correctness of his decision respecting the same.

We think the evidence contained in the record is sufficient to-justify the expenditure by the executors of the sum of eighty-five dollars for headstones, and also the sum of fifty dollars for • the per- ■ petual care of the cemetery lot in which the decedent was buried; but we are not prepared to acquiesce in the conclusion' reached in the court below respecting the remaining items.

The allowance of commissions to an executor is a matter to be determined by the surrogate, and an executor had neither the power nor the right to pay or reserve the same to himself until they had been ascertained and allowed in the manner provided by statute. (Code Civ. Proc. § 2730 ; Wheelwright v. Rhoades, 28 Hun, 57 ; Matter of Butler’s Estate, 9 N. Y. Supp. 641 ; Matter of Gerow’s Estate, 23 id. 847.)

By the terms of the section of the Code above referred to such allowance is not to be made until the settlement of the account, for the executor may, by his own misconduct in his administration of the estate, deprive himself of the right to the same. However, in this case no such question is raised; and inasmuch as the amount reserved by the deceased executor is concededly no more than he and his coexecutor would have been entitled to had the statute been literally followed, this item of the account could be easily adjusted by charging his estate with interest upon the sum of $234.05 from the time it was withdrawn from the estate of the testatrix, and we should feel inclined to make this disposition of it were it not for the more serious objections raised concerning the two remaining items.

Mrs. Bostwick was a sister of the deceased executor, John Furniss, and it seems that some five or six years prior to her decease she took up her residence with her brother and his wife, and from that time down to her decease received such support, care and attention from both Mr. and Mrs. Furniss as might naturally be expected by a sister under like circumstances. That she was a care and a burden to both the brother and his wife is clearly established, for she was an elderly woman, infirm in body and addicted to the use of stimulants to such an extent as to frequently deprive her of the power to care for herself; and in these circumstances the amount charged for her support is probably no more than Mr. and Mrs. Furniss would have been entitled to, if it could be said that they were entitled to anything. Hnfortunately, however, the evidence respecting these two claims falls short, in our opinion, of satisfying the rule which requires that the individual claim of an executor against his testator’s estate must be established by legal evidence in the same manner as that of any other claimant. (Matter of Arkenburgh, 58 App. Div. 583.) Indeed, it has been held that such a claim should be scrutinized with even • more care than one filed by an ordinary claimant. (Kearney v. McKeon, 85 N. Y. 136.)

The relationship existing between Mrs. Bostwick and John Furniss and his wife created the presumption that the services rendered in behalf of the former by her brother and sister were in the nature of a gratuity, and we find nothing in the record before us which can fairljr be said to overcome that presumption. The only evidence which even tends to establish an agreement to pay for her board and care is that of the witness Frank Furniss, a son of John Furniss,'who testified that he heard his aunt say upon a certain occasion when she had come into the possession of some money that now she would be able to repay his father ■ and mother for all that they had done for her, “if not before she died, why afterward.” This declaration certainly failed to establish either a prior agreement upon her part to pay for such service or any legal obligation to pay for' the same in the future. (Matter of O’Neill, 49 App. Div. 414.)

At the most it was but a recognition by her of a moral obligation to make some return for the care and attention which had been bestowed upon her, and coming as it did from a son of' the claimants, and purporting to furnish nothing more substantial than a vague recollection of a casual remark which had been dropped some time before, it hardly satisfies the rule requiring satisfactory evidence of such a claim before it is allowed.

In Matter of Marcellus (165 N. Y. 70, 76) it was said of a claim made by an administrator against the estate which he represented that “ Public policy required' that his claim * * * should be. established by very satisfactory evidence, and it was the plain duty of the surrogate, in the absence of such proof, to reject it.”

We think that by reason of the very unsatisfactory evidence as to the legality of the claims of both Mr. and Mrs. Furniss which this case furnishes, they should not have been allowed by the surrogate; but inasmuch as other and more satisfactory proof may be forthcoming we shall remit the case to the Surrogate’s Court for further proceeding.

Decree of Surrogate’s Court affirmed as to the items of $85 and $5'0, and reversed as to the items of $234.05, $1,470 and $111.78, without costs of this appeal to either party, and case remitted to the Surrogate’s Court for such further proceedings as may be deemed advisable.

McLennan and Hiscock, JJ., concurred ; Spring and Williams, JJ., dissented.

Decree of Surrogate’s Court reversed, and a rehearing ordered upon questions of law and of fact, without costs of this appeal to either party.  