
    George Leask and Others, as Executors, etc., of Hudson Hoagland, Deceased, Respondents, v. Charles F. Hoagland and Others, Defendants, Impleaded with Ellen B. Hill and The Third National Bank of Buffalo, Appellants.
    First Department,
    February 4, 1910.
    Executors and administrators—interest on debt due from residuary legatee —; facts not showing right of offset — costs — extra allowance.
    Interest on a debt owing by a residuary legatee to Ms testator should be computed from the maturity of the debt until one year after the date of letters testamentary when the legacy became payable. *
    Evidence in an action, brought by executors to offset against a legacy the amount of checks drawn by a testator to the order of the legatee, examined, and held, that a finding that the sum should be offset was not warranted.
    Such action is n.ot difficult and extraordinary within the meaning of section 3253 of the Code of Civil Procedure so as to warrant an extra allowance.
    Appeal by the defendants, Ellen B. Hill and another, from portions of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 4th day 'of August, 1909, upon the decision of the court rendered after a trial at the Hew York Special Term, with notice of an intention to bring np for review an order awarding a farther allowance to the plaintiffs.
    
      William C. Carroll, for the appellants.
    
      J. Hampden Dougherty, for the respondents.
   Dowling, J.:

Hudson Hoagland, a resident of the county of Hew York, died on January 30, 1904, leaving a last will and testament whereof the plaintiffs are executors, and by which his nephew, Charles F. Hoagland, became entitled to share in his residuary estate. This share has been assigned in part to various persons, and it is to determine the amounts respectively due them, as well as to establish certain alleged offsets due the estate, that the executors have brought' this action. The will is dated Hovember 18, 1903, a codicil thereto was made on December 9, 1903, and both were admitted to probate in Hew York county on June 30, 1904. The judgment from which this appeal is taken determined the rights of the several assignees of amounts out of the residuary share of Charles F. Hoagland as between themselves, and also found that the estate of the decedent was .entitled to offset (1) the amount of a certain promissory note for $10,000, dated March 1, 1901, made by Charles F. Hoagland to the order of Hudson Hoagland, payable one day after date, with interest thereon from March 2,1901, to September 8,1905, amounting in all to $12,710 ; and (2) the amount of certain checks aggregating $5,108.45, drawn by Hudson Hoagland and indorsed by the latter, with interest thereon to September 8, 1905, in all $6,039.20.

To the allowance of the first offset of $10,000, being the amount of Charles F. Hoagland’s note in favor of decedent, no objection is urged upon this appeal, nor could any be successfully advanced, as it is fully warranted by the evidence. It is claimed that interest should have been allowed only to the date of decedent’s death, but the learned court properly held (64 Misc. Rep. 156) that it was chargeable from the date of the maturity of the indebtedness until one. year after the date o'f issuance of letters testamentary, when his own legacy as residuary legatee became payable.

To the allowance as an offset of the various checks given by Hudson Hoagland to Charles F. Floagland, objection is made upon the ground that there is no evidence whatever to show the piirpose for which they were -given or the nature of the transactions, if any, which called for their issuance. Plaintiffs sought to rebut the ordinary presumption that a check is given in payment for a debt (Stimson v. Vroman, 99 N. Y. 74) by. proving the relative financial condition of the parties, and, without going into' that evidence at length, it is sufficient to s'ay that they succeeded in showing the improbability, if not impossibility, of. any indebtedness upon the part of Hudson Hoagland to Charles F. Hoagland. ■ While the law does not presume a gift (Grey v. Grey, 47 N. Y. 552) it was sought to eliminate any question of these sums having been ■advanced by way of assistance to a needy relative by showing that the sum total of all checks - theretofore given by Fludson Hoagland to Charles -F. Hoagland had been included, in and repaid by the note given by the latter to the former, and thus to warrant the conclusion that as there had never been any former gifts from, the miele.to the ,nephew, but only loans for winch the former held the latter liable, so these checks found among' the decedent’s effects likewise represented • loans which would have been repaid by a note had the uncle lived longer, But, while this is a vital point, the record does not justify the statement'that it' is established that the note of March first embraced the amount of all checks down to that date. Whether by inadvertence, or • because the fact is different from- that claimed, the only witness examined' upoti. the subject testified that he thought tliat the- last check ‘which made up the $10,000 note was dated April 1,1901, and was for $6,100; The importance of this date being accurately fixed lies in this, that the inferences -which plaintiffs seek to have drawn depend largely, if not entirely, upon the $10,000 note' embracing the amount of. all checks drawn to the date . of the note, March 1, 1901, which of course cannot be the fact if it included advances made thereafter. Moreover, if the note is a note of April 1; 1901, as the question regarding it assumes (although it actually bore date of March 1, 1901), then the court has found that on April 1, 1901, there was a loan made to defendant of $1,000, which was no't included in the note, which would destroy the inferences sought to be deduced. As a matter of fact, this finding must be incorrect, for the only check in evidence given in that month is dated April 12, 1901. IJpon this record, therefore, so mncli of the judgment as determined the validity of the sum of $6,039.20 as an offset was not warranted by the evidence, and this necessitates a reversal of the judgment and a new trial. This cause was not a difficult and extraordinary one within the meaning of section 3253 of the Code of Civil Procedure, and the extra allowance of $1,000, made herein, should not have been granted.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Miller, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  