In re the Judicial Settlement of the Accounts of Hartman

Majority

p. 378

In the Matter of the Judicial Settlement of the Accounts of Flora E. Hartman, as Administratrix of Esther F. Hartman, Deceased.

(Surrogate’s Court, Herkimer County,

Filed July, 1895.)

Headnote

1. Witness — Competency.

A witness, though, a party and interested in the event, is not incompetent under section 829 of the Code to testify to personal transactions or communications between the decedent and another, in which the witness took no part.

2. Executors — Payment or debts — Interest.

An unliquidated claim which is to be adjusted and paid in the course of administration does not draw interest.

Motion by claimant to confirm referee’s report except as to' disallowance of $1,902.33 of claim of Douglas Hartman, assigned to claimant, and motion by contestants to confirm the report except as to the allowance of interest, which they ask to be set aside and disallowed.

Upon the settlement of the account of said administratrix •she presented claims against the estate of deceased, her mother, for $!,268'.9'8j being for services performed for deceased per agreement for thirteen years ten months and six days prior to the death of deceased, alleged to be worth $3 per week, amounting to $2,163, and for claim made by Douglas Hartman, her brother, against the estate of deceased for services performed for deceased, his mother, and moneys paid out for taxes, etc., pursuant to agreement, amounting to $2,10’5.98, which was assigned to said administratrix after the death of said deceased. Contestants file objections; the matter was referred and the referee finds that there was an express contract whereby said administratrix was to be' paid at the death of deceased and allowed her for 700' weeks at $2 per week, making $1,1-00', and that there was an agreement that Douglas Hartman was to be repaid for the taxes paid out and allowed $203.65, making in

p. 379

all $1,603.65, with interest from the death of deceased, February 7, 1888, amounting to $714. The claimant was called as a witness to show conversations between deceased and Douglas Hartman in regard to the claim which he has assigned to her, and after stating that she had heard the conversations, but did not take any part in them in any manner, was asked to state the conversations. This was objected to upon the ground that it was incompetent under section 829 of the Code of Civil Procedure. Objection overruled and evidence taken subject to strike out and which was struck out at the close of the evidence upon motion.

Steele & Prescott, for claimant; Henderson & Bell, for contestant, William Hartman; E. B. Mitchell, for contestant, Eugene Hartman.

The referee erred in striking out the testimony of the claimant concerning conversations between the decedent, Esther F. Hartman, and Douglas Hartman, and in excluding other conversations offered in evidence between the same persons. ■ The witness was a party, and interested in the event; but the offered evidence was not ’ponceming any personal transaction or communication in which the witness had or took any part, in any manner, so far as appeared. The evidence was therefore competent. O’Brien v. Weiler, 140 N. Y. 281 ; Cary v. White, 59 id. 336 ; Simmons v. Havens, 101 id. 427 .

The question of the allowance of interest is not free from difficulty. It is stated in the briefs of the parties’ opposing the claim that the claim exhibited does not demand interest. I have not been furnished with such claim, and cannot determine as to the correctness of that statement. Upon the evidence, however, I cannot find support for the allowance upon the claim of Flora E. Hartman for her services. It is difficult to see any material distinction- between the facts of this case and the facts in the case of Littell v. Ellison, 44 St. Rep. 22 ,

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which can aid the claimant. It may be that the facts, in this case are less favorable to the requirements which must exist before interest can be allowed than in the Ellison case. In the Ellison case there was a breach of contract at the date of the death.

In this case the evidence discloses, and the referee has reported, that, if Mrs. Hartman did not sell her property during her lifetime, Elora was to have her pay out of it after her mother’s death. The intention was, evidently, that the claim should be paid in the course of administration, as a claim against the estate; and the claim being an unliquidated one, to be adjusted and paid in the course of administration, it will not draw interest.

The statute of limitations is not a bar to the claim of Elora E. Hartman for services, or any part of it; and whether it may be a bar to any portion of the Douglas Hartman claim may better be determined after a rehearing, which will be necessary on account of the error of the referee in striking out the evidence of Flora E. Hartman, as above stated.

Motions denied and rehearing ordered.

Cases cited

O'Brien v. Weiler 140 N. Y. 281 N.Y. 1893-12-05 p. 379