In re the Final Judicial Settlement of the Account of Proceedings of Johnstone

Majority

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In the Matter of the Final Judicial Settlement of the Account of Proceedings of James Johnstone, as Executor, etc., of Fred D. Nichols, Deceased. Waters & Sawyer, Respondents; James Johnstone, as Executor, etc., of Fred D. Nichols, Deceased, Appellant.

On April 5, 1921, the claimants gave to the decedent Fred D. Nichols their promissory note for $11,500, payable in installments for the balance of the purchase price of a store and stock of goods. They continued to pay upon the note until September, 1931, when they refused to pay any more until the matter was settled up. The decedent agreed to get the note and settle up with them but he never did. The note was found in a safety deposit box and was not included by the executor as part of the estate in the transfer tax proceedings. The claimants filed a claim for $4,179.07 for overpayments on said note. The claim was rejected and the matter came to trial upon the final judicial settlement of the account. The surrogate found that the money was paid by a mutual mistake of facts and that there had been no change in the position of the parties to warrant a decree refusing an order for repayment and

p. 1111

accordingly ordered the claim to be paid with interest. The decree appealed from should be affirmed, with costs to all parties filing briefs payable out of the estate. Decree appealed from affirmed, with costs to all parties filing briefs payable out of the estate. Hill, P. J., Crapser, Heffeman, Schenck and Poster, JJ., concur.