Opinion
July Term, 1899.
Van Ness Curry and C.H. Sturges, for the appellant.
James C. Rogers, for the respondents.
The main question in this case relates to that part of the decree appealed from which charges the administratrix with the sum of $1,099.78, as being the amount of a note against J. Wilbur Gould, and interest to the date of the decree. It is found that the note was owned and held by the deceased at the time of her death.
The note had been left by the deceased some time before her death in the custody of Paul Wilbur, a relative, but not one of her next of kin. The maker of the note was also a relative, but not one of the next of kin. The decedent died on the 13th of May, 1896, and letters of administration were issued to the appellant on June 19, 1896. She made an inventory which is dated and verified September 14, 1896, but was not filed till February 7, 1898, which was after the commencement of the proceedings for an accounting. The amount of property as stated in the inventory is $383.42. It does not contain the note above referred to, and the note was not then and never has been in the possession of the administratrix. The parties contesting the account called as a witness Paul Wilbur. He testified as to a transaction between him and the maker of the note as follows: "That note was given to Wilbur Gould just before her death. I could not say; one or two days before her death. Wilbur Gould came to my place and asked me for the note; said Elizabeth told me to give him the note, and I did under the orders from her. He had a witness to prove that she told him to get the note. On those grounds, I told him he would have to give me a receipt, and I let him have the note, and he took and gave me a receipt, saying that he had received the note." The receipt, which was written by Gould in the presence of the witness Wilbur, was put in evidence and bears date May 13, 1896. The witness also testified that Miss Baker, who was afterwards appointed administratrix, was with Mr. Gould when he got the note and gave the receipt. The surrogate found that this transaction was on the day of the death of the decedent, evidently following the date of the receipt instead of the testimony of the witness. There was no other evidence on that subject. The evidence is not clear as to the amount of the note. Paul Wilbur testified that he and Job Wilbur, quite a little time before the death of the decedent, figured up the amount due, and that as near as he could remember the amount was something like $750, may have been $800. Job Wilbur, called by the contestant, testified that his impression was that there was a little over the interest paid on the note, a little paid on the principal; that his impression was that "it was a one thousand dollar note, something I did not charge my memory with;" that he could not say positively what amount he found due, but his impression was that it was a little less than the face of the note, would not say over fifty dollars. The administratrix on the examination of the contestant testified that shortly after the death of the decedent Paul Wilbur said that the face of the note was $950, but that there had been several payments on it. The surrogate charged the note to the administratrix at the amount of $950 and interest from May 1, 1896, evidently following the impression of the witness Job Wilbur, which he had some two years after the occurrence. The maker of the note is evidently in the attitude of claiming that by order of the decedent the note was delivered up to him as being paid or as a gift. The appellant demanded of him that he account for it, but he declined to do so. There is no evidence that the debt, if there was one, has been lost by the delay.
Upon an accounting, the affirmative of establishing more assets than are acknowledged by the inventory and account is with the party objecting, and it must be established with reasonable certainty and not left to mere conjecture or suspicion. ( Marre v. Ginochio, 2 Bradf. 165.)
We are not satisfied with the conclusion of the Surrogate's Court as to the amount due upon the note, or as to the liability of the appellant therefor. It may be that the appellant should have been directed to prosecute ( Matter of Underhill, 117 N.Y. 471), but that we need not now consider. A new trial should be granted when there may be a more satisfactory investigation of the matter.
All concurred.
Decree reversed upon the facts and a new trial granted, costs to abide the event.