In re Lewis — 5 A.D. 178

Majority

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In the Matter of the Application of Frederick Lewis, one of the Executors, etc., of Hannah Lewis, Deceased, for a Revocation of the Letters Issued to Him. Frederick Lewis, Executor, etc., of Hannah Lewis, Deceased, Appellant; Minnie Waitzfelder and Others, Respondents.

Headnote

Evidence— what personal transaction with a decedent may be testified to by the other party to it —failure to make a co-executor a party to an accounting.

Upon, the accounting of Frederick Lewis, one of the executors of Hannah Lewis, deceased, on which objection was made that the executor had not charged himself with certain money collected from a life insurance company, the surrogate refused to allow one David H. Lewis to testify to an agreement made between himself and Hannah Lewis that money which he had advanced to pay the premiums upon a policy of life insurance, payable to Hannah Lewis upon the life of her husband, Henry Lewis, should be repaid to him from the proceeds of the policies which he received during the lifetime of the testatrix and after the death of Henry Lewis.

Held, that the evidence was admissible;

That David H. Lewis was not a party to the proceeding, nor was he interested in any way in the event thereof;

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That if Hannah Lewis had made such an agreement with David H. Lewis, the accounting executor should have been permitted to prove it, and should have been given credit for the amount retained by David H. Lewis.

Tinder what circumstances a surrogate is not justified in refusing to proceed with an accounting by one executor, although the co-executor is not made a party to the proceeding, considered.

Appeal by Frederick Lewis, one of the executors, etc., of Hannah Lewis, deceased, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 8th day of February, 1896.

This proceeding was commenced by Frederick Lewis, as executor of Hannah Lewis, deceased, asking to be allowed to account and be discharged.

The following objection, among others, was taken to the account filed by the executor, in that it fails to charge the executor with the following item:

First. On information and belief an item of nine thousand eight hundred and fifty-seven dollars and eighty-five cents ($9,857.85) for money collected from the Manhattan Life Insurance Company on August 7, 1888, owing to the deceased in her lifetime.

Abram Kling, for the appellant.

James E. Kelly, special guardian, for infant respondents.

Henry Smith, for the respondent Waitzfelder.

We think the learned surrogate erred in refusing to allow David H. Lewis to testify as to his agreement with the testatrix, that the money that he had advanced to pay the premiums upon the policy of life insurance upon the life of Henry Lewis, her husband, should be repaid to him from the proceeds of the policies which he received after the death of Henry Lewis, and during the lifetime of the testatrix. And we think that upon proof that David H. Lewis had, with the assent of the testatrix, retained the amount of such premiums, such amount should have been allowed to the appellant.

The objection to the testimony was under section 829 of the Code, which provides that “ a party or person interested in the event, or a person from, through or under whom such a party or

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interested person derives Ms interest or title, by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator,” etc. It is quite clear that David H. Lewis did not come within this prohibition. He was not a party to this proceeding, and was not interested in the event thereof. No party to this action derived his interest or title by assignment, or otherwise, from him, nor was he examined in his own behalf or interest against “ the executor, administrator or survivor ” of the testatrix.

The surrogate charged the appellant with the two sums of money that he had received from the estate of the deceased. The executor then sought to prove that, before the death of his testatrix, David H. Lewis had received the proceeds of the policy of insurance upon the life of her husband, which was payable to her, and had, with her consent, deducted from the amount due certain payments that he had made for premiums during the life of her husband, which had kept the policy alive. We can see no reason why the appellant should be responsible for the amount thus deducted by David II. Lewis prior to the death of the testatrix, and which, with her consent, had been deducted from the amount paid under the policy. This is not a proceeding to recover that money from David H. Lewis. David H. Lewis is not a party to the proceeding, or interested in any way in this accounting, and it is clear that his testimony is neither within the letter nor the spirit of the prohibition contained in section 829 of the Code.

The will of the testatrix was not made a part of the record on this appeal, but the petition of the appellant for an accounting alleges that Minnie Waitzfelder, under the will, enjoys the use and benefit of the personal property during her life, and upon her death, leaving issue, the income so paid to her during her life is to be applied to the maintenance and support of her issue, which consists of two children, until they become of age, when the property is to go to them, and that they are parties to this proceeding. This appellant and his co-executor seem to have entirely overlooked this disposition of the property by the will, and simply appropriated it by some method of transferring it from one to the other for their own use. Not the slightest attempt has been made to protect the interest of

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the beneficiaries, and it is enough to say that upon the evidence it is clear that the appellant is responsible for this misappropriation of the trust funds, and that the surrogate "was entirely right in charging him with the amount of them. Under the circumstances we do not think the surrogate would have been justified in refusing to proceed on the ground that the co-executor was not a party to the proceeding. The appellant had commenced this proceeding for an accounting. Tie had not made his co-executor a party, and the application to bring in the co-executor was only made at the end of the proceeding on the last hearing before the surrogate.

There are objections to the testimony of Frederick Lewis, which were sustained under section 829 of the Code, as to payment made by him. We do not think that some of the rulings could be sustained as they appear in this record, but as there must be a new hearing before the surrogate, and as these questions may not then be presented, it is not necessary to refer specifically to them. We think the decree must be reversed and a new hearing directed, with costs of this appeal to be paid out of the estate in the hands of the appellant.

Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.

Decree reversed and new hearing directed, with costs of appeal to be paid out of the estate in the hands of appellant.