
    Matter of the Estate of William May, Deceased.
    
      (Surrogates Court, New York County,
    
    
      December, 1915.)
    Executors and administrators—When balance paid to administrator—Evidence.
    Where claimant received from decedent, a feeble and illiterate old man, certain money upon the understanding that out of it should -be paid his living expenses and the cost of his burial, the balance must be paid over to the administrator in the absence of clear and adequate proof that claimant is entitled to retain it.
    Discovery proceeding.
    Walter A. Sweet, for administrators.
    Peter P. McElligott, for respondent.
   Fowler, S.

This is a discovery proceeding before me. I am satisfied that Mr. Anderson received some money from Mr. May, a feeble and illiterate old man, and that the understanding was that out of it he should pay Mr. May’s living expenses and the cost of his burial. There is no dispute about the amount so received. Mr. Anderson’s claim is that he was entitled to retain the balance. With the evidence of this claim I am not satisfied. Such a claim must always be established by clear and adequate proofs. Consequently the balance remaining in his hands, after deducting all the payments made to or for the use of the deceased, must be paid over to the administrator. As this resembles an equitable proceeding, the administrator must do equity as a condition of relief, and I shall be very liberal in allowing deductions for sums actually expended.

Decreed accordingly.  