Opinion
March 23, 1917.
Joseph M. Proskauer, for the appellant.
Louis B. Williams, for the respondent.
Louis Lese was the administrator of David Lese. Louis Lese paid to Frederic Lese the sum of upwards of $14,000 upon the claim of Frederic Lese that he had expended those moneys for David Lese upon David's promise to repay him in January, 1911. David Lese died May 5, 1911, without having performed that promise. Louis Lese had bought two pieces of property in 1905 and had given therefor two mortgages of about $7,000 each as purchase-money mortgages. In 1910 the mortgagees threatened foreclosure. Thereupon David Lese agreed with Frederic Lese that if Frederic would purchase the same he would pay him the moneys therefor the January following, when Frederic was to give a satisfaction of the mortgage. In pursuance of that agreement Frederic did purchase the mortgages, paying about $4,000 of his own and $10,000 of borrowed money. It is claimed that these two pieces of property, although in the name of Louis Lese, were in fact held by him for David Lese. The reason assigned is that David had been divorced and did not want his wife to know that he held the property. It appears in the evidence that David Lese paid the interest upon these mortgages and paid the taxes, and it appears that Louis Lese acknowledged to the heirs of David Lese that the property belonged to David Lese, and that is the position which he now takes. It would seem if Frederic Lese expended these moneys upon the promise of David Lese to repay him in January, 1911, that Frederic Lese had a legal claim against David Lese, which the administrator had the right to recognize and pay. David Lese died without a will and left Louis Lese and the heirs of a deceased brother as his only heirs at law and next of kin. Because Louis Lese is entitled to one-half of the estate is the reason why his account had not been surcharged with the full $14,000 he paid to Frederic as moneys advanced.
The evidence to sustain this claim was partly the evidence of Frederic Lese himself, which was objected to under section 829 of the Code of Civil Procedure, but Frederic Lese had been in fact paid, so that he was no longer interested in the result of the controversy, and his testimony was not incompetent. This was so held in Matter of Frazer ( 92 N.Y. 239); Matter of Mulligan ( 82 Misc. Rep. 336); Matter of Herrington (73 id. 182). He swears positively to the promise of David to repay him the moneys advanced. The testimony as to the fact that the property was originally purchased by Louis Lese in behalf of David, and as trustee for him, as far as that testimony is given by Louis Lese, was objected to under section 829 of the Code of Civil Procedure, and his testimony admitted, but was afterwards stricken out. But this evidence is not necessary to this determination. Moreover, Louis Lese was called by the contestant first, and was sworn in part as to this very transaction, and, therefore, his testimony was at least in part competent, and should so far have remained in the case.
It is argued that if this mortgage had been given by David with his bond, and had been purchased by Frederic, it would be simply an indebtedness upon a bond and mortgage, which would have to be paid by the heirs, and not by the personal estate. But the bond and mortgage were not given by David, but by Louis, and the moneys were advanced by Frederic upon David's promise to repay in January, and it is that promise, not the promise of the obligor of the bond, that he is seeking here to enforce. The claim of Frederic Lese against David's estate was not an equitable claim. It was a legal claim fully established by the evidence and properly paid by the administrator.
There is another reason why this decree should be reversed. Louis Lese presented an account to the surrogate. All of these contestants were duly cited. In that account he recited these claims, and the decree directed their payment. After the making of the decree he did pay them. These contestants made default upon that accounting, and have since had the decree opened to allow them to come in. Nevertheless the administrator is clearly protected in his payment made under the decree of the court in an accounting to which all these parties were cited. There is no pretense here that they are not bound by that decree, and the favor of the court in opening that decree thereafter cannot affect the right of Louis Lese to claim credit for this payment, unless there is some evidence of bad faith, which is not here shown. The payment by the administrator of these claims upon the decree before the decree was reopened is a complete answer to this charge, and the fact that it was paid to his son cannot alter its legal effect.
The decree should be reversed, with costs, and the matter remitted to the Surrogate's Court to proceed in accordance herewith.
CLARKE, P.J., LAUGHLIN, SCOTT and SHEARN, JJ., concurred.
Decree reversed, with costs, and matter remitted to Surrogate's Court.