
    Second Department,
    June, 1912.
    In the Matter of the Judicial Settlement of the Account of Charles E. McDermott, as Administrator, etc., of John McDermott, Deceased, Respondent. Catherine L. Freeman and Esther E. Irving, Appellants.
    
      Decedent's estate—gift—good will and profits of business.
    
    Reargument of an appeal from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 2d day of November, 1910, settling and allowing the accounts of Charles E. McDermott, as administrator, etc., of John McDermott, deceased. (See 147 App. Div. 934.)
   Hirschberg, J.:

The parties to the appeal are the children of John McDermott, who died intestate in Brooklyn in the year 1909, at the age of eighty years, from the effects of paralytic strokes, one received in the year 1904, and the second one a month before his death. On the settlement of the estate a number of items were disputed, but on the appeal the appellants limit the review to the question of the respondent’s liability to account for the good will and the profits of the business of the deceased which was carried on by the respondent during the last five years of the life of the deceased, a question as to the rent of certain property claimed to have been unaccounted for, and an item of $35,000 which, it is undisputed, the respondent received in the year 1904, and which was the proceeds of the sale of some real estate in Brooklyn belonging to the deceased. The case is not clear as to the items of good will and profits of the business and the claimed balance of the rent, but it is quite obvious that the duty devolves on the respondent to account for the sum of $35,000 belonging to the deceased and received by him (the respondent). Several witnesses testified that the respondent admitted that he had received the money for the sale of the real estate, and he admitted it himself. This was all the proof which the parties could make in the matter, namely, that the proceeds of the sale of a piece of property sold by his father in the latter’s lifetime came into his (the respondent’s) possession. The learned counsel for the respondent states in his brief with reference to the item that it was a gift inter vivos and that it had all the essential elements of a valid gift. It is a sufficient answer to this claim to say that the learned surrogate has not found as a fact that the money was given to the respondent, nor has he found any other facts from which a gift may fairly be inferred. The respondent’s claim that the money was given to him by the deceased is in effect an admission that it. has not been repaid to the deceased or used for his benefit. The conclusion reached by the learned surrogate appears to have been based upon the fact that proof of the possession by the respondent of funds belonging to the deceased prior to his death is insufficient on which to base any assumption of indebtedness or to require an accounting. I think that as the proof establishes beyond dispute the fact that the respondent transacted his father’s business during the years of the latter’s illness preceding his death, it became the respondent’s duty to account for the $35,000 belonging to the deceased which he received, and that there must accordingly be a reversal of the decree. The reversal will be upon questions of fact as well as upon questions of law, and will leave open for such additional evidence as the parties may desire to offer the questions undetermined on this appeal in reference to the accounting for the good will and profits of the business and the rents collected. Jenks, P. J., Burr, Woodward and Rich, JJ., concurred. Decree of the Surrogate’s Court of Kings county reversed on reargument, and new trial granted, costs to abide the event, and matter remitted to said Surrogate’s Court to proceed in accordance with opinion.  