
    In the Matter of the Judicial Settlement of the Account of Charles S. Gerstenberg, as Administrator, etc., of Mary Gerstenberg, Deceased. Charles S. Gerstenberg, as Administrator, etc., of Mary Gerstenberg, Deceased, Appellant, v. William M. T. Zimmer, Respondent.
    Second Department,
    June 4, 1909.
    Decedent’s estate —lottery ticket — evidence of possession.
    Where upon the judicial settlement of the accounts of an administrator the next of kin of the deceased seeks to charge his account with §3,150, claimed to be the proceeds of a lottery ticket owned hy the deceased, who was the administrator’s wife, and there is no evidence that the deceased ever purchased the ticket in dispute, hut it is shown that when she purchased tickets it was for her husband and in his name, and the husband’s statement that he was a regular buyer of such tickets is corroborated and it cannot be determined with any certainty from the evidence that the ticket belonged to the deceased instead of to her husband, a decree charging the administrator’s accounts with the proceeds of the ticket will be modified by striking out such item.'
    Appeal by Charles S. Gerstenberg, as administrator, etc., from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 21st day of July, 1908, surcharging the account of the administrator.
    
      Otto Kempner, for the appellant.
    
      Charles H. Kelby [Frank A. Crowe with him on the brief], for the respondent.
   Gaynor, J.:

The appellant accounted as his wife’s administrator. She left a son by her first husband as sole heir and next of- kin. The son filed an exception that the administrator had failed to account for $3,150 of which the deceased died possessed, and which came into the administrator’s hands. This was not proved. It was claimed, however,, that some sort of a lottery ticket — of what lottery does not appear — was owned by the deceased, that it won at or about the time of her death, and that the administrator collected the money on the ticket after her burial. There is no evidence that she ever purchased the ticket. The wife of the son testified that she saw the deceased purchase lottery tickets at times, hut'in no way identities the one in dispute. She also testified that the administrator showed her some money two days after his wife’s burial, had $3,000 in his hands, and put it under her nose and said: “ HoW would you like to have this? Mother won it on her dying bed. At 5 o’clock sht died and at 5 o’clock we got it”. This appears none too probable, and is inconsistent with the idea that the husband wanted to conceal that it was his wife’s and keep it. On the other hand the husband testified that he was a regular buyer of lottery tickets of an old man who called at his house regularly to sell them — for such is the covert way in which that illegal business is extensively carried on — and purchased the one in question. In this he is corroborated. There is evidence that when the wife purchased tickets of this same man it was for her husband, and that her husband’s name was given. It cannot be said with any degree of certainty that the ticket, belonged to the deceased instead of to her husband.

The decree should be modified in accordance. with this opinion, and as thus modified affirmed.

Woodward, Jbnks, Burr and Miller, JJ., concurred.

Decree of the Surrogate’s Court of Kings county modified in accordance with opinion, and as thus modified affirmed, with costs to the appellant.  