
    Matter of the Final Judicial Settlement of the Accounts of Seymour W. Humphrey as Executor of the Last Will and Testament of Mary J. Humphrey, Deceased.
    (Surrogate’s Court, Dutchess County,
    April, 1907.)
    Executors and administrators — Rights and liabilities between representative' and estate — Claims by personal representative — Evidence.
    The payment by an executor of a mortgage upon a farm devised to him by his mother with the funds ’of the estate, before any effort to legally establish an agreement by testatrix to pay it, is unauthorized.
    Where the evidence in support of such alleged agreement by the mother to pay said mortgage is given by the executor’s son and his sister and is to the effect that testatrix had stated that, if her son, the executor, would buy the place and make repairs, she would pay five hundred dollars of the purchase price if he would pay the balance of fifty dollars; and where it is conceded that she paid three hundred dollars of the purchase price, and his attorney testifies that, at the time of the preparation of the will, nearly five years before, testatrix stated that she intended to pay off the mortgage from the money she expected to receive, but she did not wish to make a provision in her will for such payment, the agreement of the testatrix to pay said mortgage is not made out, and an item crediting the executor with the payment of the same will be disallowed.
    
      Proceeding, upon the final judicial settlement of the accounts of an executor.
    George Card, for executor.
    Walter Harrington, for Seymour W. Humphrey.
    George Wood, for Martha Hammond,
    Alexander Dow, for Jennie Chamberlain.
   Hoysradt, S.

Objection has been made to an item in the account of this executor whereby he credits himself with $236 paid September 26, 1906, from the assets of the estate to cancel a mortgage on his own real estate.

It has been shown that Mary Jane Humphrey by her will, admitted to probate in this court January 2, 1906, devised to her son, Seymour W. Humphrey, her executor, a farm at Pleasant Valley, N. Y. At the time of her death and, in fact, when the will was executed, there was a mortgage of $200 on this farm which the son claims his mother agreed to pay and he has, before any effort to legally establish such an agreement or to make a claim against the estate, paid the mortgage with the estate funds. After destroying the mortgage papers he now asks the court to ratify this procedure after objection has been made to the account and in defense of his position the executor has sought to establish the alleged contract with his mother, that she should pay this mortgage. The transaction is not such as to invite the credulity of a court at the outset and an examination of the record discloses that the agreement has not been established within the familiar principles which the courts have adhered to in cases of this character.

The evidence in support of this alleged agreement has been given by the executor’s son, his sister and his attorney, and is to the effect that the testatrix had stated that if her son Seymour would buy this place and make repairs she would pay $500 of the purchase price if he would pay the balance of $50. It is conceded that she paid $300 of the purchase price. The attorney has testified that at the time of the preparation of her will, executed October 30, 1901, she stated that she intended to pay off the mortgage from money she expected to receive, but she did not wish to make a provision in her will for such a payment.

The question presented is entirely dependent upon the sufficiency of the proof tending to establish the agreement. In a recent case, Holt v. Tuite, 188 N. Y. 17, the Court of. Appeals has re-stated the principles applicable to cases of this character in these words: “We have repeatedly held that such a contract must not only be certain and definite and founded upon an adequate consideration, but also that it must be established by the clearest and most convincing evidence. * * * We have been rigid and exacting as to the sufficiency of the evidence to" establish such contracts and condemned parol evidence given by interested witnesses, as such contracts * * * are hard to disprove because the sole contracting party on one side is always dead when the question arises, we have declared that they should be in writing or, if ever based upon parol evidence, it should be given. or corroborated in all substantial particulars by disinterested witnesses.”

Among the most recent cases in which this rule of the Court of Appeals has been applied are: Rosseau v. Rouss, 180 N. Y. 116; Roberge v. Bonner, 185 id. 268; Apollonio v. Langley, 106 App. Div. 43; Kane v. Smith, 109 id. 164; Lucas v. Boss, 110 id. 224; Matter of Schroeder, 113 id. 210.

Measured by this rule the claim in the case at bar is not made out. The proof is not given by disinterested witnesses; there is no adequacy of consideration and the most that can be reasonably deduced from the statement of the testatrix, if proven, would be that she intended to make her son a gift which she afterward decided not to do, as it is shown that she had ample funds to complete such a gift had she desired to do so.

The action of the executor in paying off the mortgage was unauthorized: The item crediting him with $236 is disallowed. In other respects the account is allowed after eliminating all the items of the executor’s traveling expenses as agreed on the hearing.

Decreed accordingly.  