
    (86 App. Div. 96.)
    In re FURNISS.
    (Supreme Court, Appellate Division, Fourth Department.
    July 7, 1903.)
    1. Death of Executor — Account by his Executor — Jurisdiction of Surrogate — Judicial Settlement.
    Under Code Civ. Proc. § 2606, as amended by Laws 1901, p. 1096, c. 409, providing that on the death of an executor the Surrogate’s Court has the same jurisdiction to compel the executor of the decedent to account which it would have had against the decedent if his letters had been revoked, where all the parties interested in the estate were before the court in a proceeding instituted by the executors of a deceased executor for an accounting of his office, the surrogate had jurisdiction to turn the same into a judicial settlement.
    2. Same — Allowance for Services — Reservation by Executor.
    Under Code Civ. Proc. § 2730, providing for an allowance by the sur rogate of commissions for services to an executor on the settlement ot his account, the allowance is to be made by the surrogate, and an executor cannot reserve the same to himself until the amount is ascertained in the manner provided by statute.
    8. Decedent’s Estate — Claim of Executor — Establishment.
    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.
    4. Same — Claim against Estate — Evidence—Sufficiency.
    Evidence of a son of an executor that he had heard testatrix say that she would be able to repay executor and his wife for their support of her, if not before her death, then afterward, was insufficient to establish either a prior agreement or legal obligation on her part to pay for such services.
    Appeal from Surrogate’s Court, Seneca County.
    In the matter of the judicial settlement of the account of John Furniss as one of the executors of Mary Ann Bostwick, deceased. From a decree settling the account, Jane Wight and others, legatees under the will of Mary Ann Bostwick, appeal.
    Reversed.
    
      Argued before ADAMS, P. J., and McLENNAN, SPRING, WILLIAMS, and HISCOCK, JJ.
    Henry E. Miller and Charles E. Opdyke, Jr., for appellants.
    Frederick L. Manning, for 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 Bostwiclc, deceased, for the judicial 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 1901, p. 1096, c. 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 revoked 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, 71 N. Y. Supp. 795.

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. Bostwiclc, and at the time of such payment releases were executed by both of these legatees, each of whom subsequently sought by k 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 lodgings furnished to the testatrix by John Furniss..... 1,470 00-

Care and attention furnished by Jane Furniss, wife of John Furniss 111 78-

Paid I. Wellhauser for headstones..................... ......... 85 00

“ John Furniss, expenses............... 37 52

“ for care of cemetery....................................... 50 00

§1,988 35

All of these items, with the exception of that of $37.52, 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 $85 for headstones, and also the sum of $50 for the perpetual 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; Wheelright v. Rhoades, 28 Hun, 57; In re Butler’s Estate (Sur.) 9 N. Y. Supp. 641; In re Gerow’s Estate (Sur.) 23 N. Y. Supp. 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 estate, for the executor may by his own misconduct in the 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 co-executor 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 Eurniss, 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. Eurniss 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. Unfortunately, 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. In re Arkenburgh, 58 App. Div. 583, 69 N. Y. Supp. 125. 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 Eurniss 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 fairly 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 Eurniss, a son of John Eurniss, 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, 63 N. Y. Supp. 291. 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 sometime before, it hardly satisfies the rule requiring satisfactory evidence of such a claim before it is allowed. In the Matter of Marcellus, 165 N. Y. 70, 76, 58 N. E. 796, 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 $50, 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 advisable. All concur except SPRING and WILLIAMS, JJ., who dissent.  