
    Marie Sipple, as Executrix, etc., of Edward Sipple, Deceased, Appellant, v. Lodie Fickett, Respondent.
    Third Department,
    July 8, 1913.
    Decedent’s estate — action upon promissory notes — failure to show lack of consideration — evidence — surcharging accounts of executrix — failure of defendant to make demand.
    Action by an executrix upon negotiable promissory notes made by the defendant to the order of the plaintiff’s testator, the defense being that the only consideration for the notes was an agreement by the testator to rent his farm to the maker, but that the testator died before the term began and that the maker never had possession of the premises, constituting a failure of consideration. Evidence examined, and held, that a judgment for the defendant should be reversed and a new trial granted.
    In such action it is error to admit evidence that the accounts of the executrix were surcharged by the surrogate in a certain amount and that she was required to invest certain funds and deposit securities with the county treasurer, etc.
    So, too, it is error to refuse to allow defendant’s wife to reply to a question asking whether she ever demanded possession of the farm from the executrix.
    Appeal by the plaintiff, Marie Sipple, as executrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Sullivan on the 9th day of December, 1912, upon the verdict of a jury and from an order entered in said clerk’s office on the 30th day of December, 1912, denying plaintiff’s motion for a new trial made upon the minutes.
    
      Elmer Baker, for the appellant.
    
      Carpenter & Rosch, for the respondent.
   Kellogg, J. :

The action was brought to recover upon two negotiable promissory notes made by the defendant to Edward Sipple, one dated April 1, 1907, for $150 and interest, payable three months from date, the other dated May 1, 1907, for $100 and interest, three months from date. The making and delivery of the notes were conceded.

The answer alleged that the only consideration for the notes was an agreement by the payee to rent his farm to the maker for one year; that the payee died before the term began and that the maker never had possession of the premises and, therefore, the notes were without consideration. The defendant’s wife is the daughter of the payee, and she swears to the leasing of the farm by herself and husband, at $250 per year, the term to begin at the expiration of the lease to the tenant Hart; that her father produced the two notes and stated that he was short of money and asked the defendant if he would sign the notes in order to raise some money; that he would keep them renewed every three months and whatever the defendant liked to pay upon them from time to time would apply upon the rent for the next year. Both notes were signed the same day. The evidence showsthat at the time the inventory was taken the defendant and his wife were both present and the notes were exhibited to them by the appraisers; that the defendant and his wife each, in substance, stated that the notes had been paid and neither of them said anything about the rental of the farm or that the consideration of the notes had failed, or that they were given for the accommodation of the payee. One of the appraisers was a merchant, the other a justice of the peace of the town, both apparently disinterested. The defendant and his wife severally deny that they made any statement that the notes were paid. Neither of them claimed that when the appraisers produced the notes they made any suggestion that they were invalid or were given without consideration, or for the accommodation of the payee or on account of the rental of the farm. The defendant was entirely irresponsible and for that reason the notes were stated upon the inventory with no value carried out. The notes were payable at the bank but were never presented to the bank or offered for discount. If the notes were given upon the same day to enable the payee to raise money upon them, it is difficult to understand why they should be dated a month apart, and it is difficult to understand how the note of a man who is entirely irresponsible would enable the payee to raise money. These facts — and the fact that neither the husband nor wife gave any explanation as to the notes except the allegation that they were paid — throw a great doubt upon the testimony of the wife, and I am satisfied that the verdict is against the evidence.

The executrix had had an accounting before the surrogate and the decree surcharged her account with $687.75 and required her to invest the funds, $1,113.63, in bond and mortgage and deposit the securities with the county treasurer, and charged upon her $91.64 for the services and disbursements of the attorneys of Mrs. Fickett and the other contestants. This decree was received in evidence over plaintiff’s objection. It could have no possible bearing upon the case and clearly indicated to the jury that the plaintiff’s administration of the estate was not approved of by the court and at least cast a reflection upon her and her management of the property. This, coupled with the fact that the defendant’s wife would eventually be entitled to one-third of the estate, was clearly prejudicial.

The defendant’s wife, after swearing that the notes in part at least represented the rental of the farm and that the use of the farm was lost to them by the death of the testator before the term began, was asked if she ever demanded possession of the farm from the executrix, and the objection of the defendant was sustained and the answer excluded, to which the plaintiff excepted. This evidence was directed to the point in issue, whether the notes did in any manner represent the rental of the farm. If they did it would not be reasonable that the defendant and his wife, the lessees, would make no effort to obtain possession of it. It is incomprehensible, if her story is true, that they should not have claimed the possession of the farm, or that the notes having been given for the rental and for the accommodation of the testator were invalid. These rulings were prejudicial to the plaintiff and also call for a reversal of the judgment.

The judgment and order should, therefore, be reversed upon the law and the facts and a new trial granted, with costs to the appellant to abide the event. The findings of fact disapproved of are that the notes were without consideration and for the accommodation of the testator and did not represent an actual indebtedness.

All concurred.

Judgment and order reversed on law and facts and new trial granted, with costs to appellant to abide event. The finding of fact disapproved of is that the notes were without consideration and for the accommodation of .the testator and did not represent an actual indebtedness.  