In re Sunderlin's Estate — 26 N.Y.S. 358

Majority

p. 358

In re SUNDERLIN’S ESTATE.

(Supreme Court, General Term, Third Department.

December 6, 1893.)

Headnote

Exbcutobs and Administrators—Claims against Estate.

On an accounting by an administrator, his coadministrator presented a claim for the balance of the estate, after paying the debts and expenses. The claim set out an agreement between claimant and deceased by which claimant was to have the entire estate in consideration of furnishing deceased with a home, and it concluded with a prayer that such balance be decreed, and for such ■ other relief as might be equitable. The claim was heard by the surrogate, no reference having been ordered. Held, that an allowance could be granted to claimant for the value of board and lodgings furnished to deceased, as the surrogate has more latitude than a referee appointed under the statute.

Appeal from surrogate’s court, Montgomery county.

Petition by James W. Walrath, as administrator of the estate of Matilda Sunderlin, for judicial settlement of his accounts. Petitioner asks that Sarah 0. Thumb, coadministrator of petitioner, may be cited to attend the settlement. Said Sarah C. Thumb presented a claim against the estate, which was disallowed, and she appeals. Modified.

For former report, see 23 N. Y. Supp. 648 .

The claim presented by Mrs. Thumb is as follows:

■ “The above-named Sarah O. Thumb, administratrix of the said estate, etc., of the said Matilda Sunderlin, deceased, in the above-mentioned proceedings, alleges and respectfully shows unto this court that she has and owns a personal claim against the estate of Matilda Sunderlin, deceased, arising out of the following facts, to wit: That on or about the 20th day of January, 1891, the said Matilda Sunderlin entered into an agreement with the said Sarah O. Thumb whereby the said Matilda agreed to and with the said Sarah that the said Sarah should provide a home with herself for said Matilda, and supply and furnish her with board, lodging, and care during the period of the natural life of said Matilda, and in consideration thereof and therefor it was agreed and understood by said parties that Sarah 0. Thumb should have, own, and possess all the property the said Matilda died possessed' of and under her control; that, under and pursuant to said agreement, the said Matilda, from said time, lived and made her home with said Sarah 0. Thumb, and was by her provided with and furnished board, lodging, and care until her death, the said Matilda Sunderlin, which occurred on or about the 23d day of February, 1891; that said Sarah 0. Thumb fulfilled all the conditions of said agreement upon her part to be by her kept and performed, and prays that said property found in possession of said Matilda' Sunderlin at her death, and now in the hands of the administrators, duly appointed by the surrogate of this court, of the said goods, chattels, credits, and effects of the estate of said Matilda Sunderlin, deceased, after

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payment of all the debts and the funeral expenses and costs of administration thereon, etc., be declared to be the property of said Sarah O. Thumb, and ordered to be paid over to her by this court, and for such other order and relief as may appear equitable in the premises.”

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

J. W. Hill, for appellant.

Huston & Herrick, (H. L. Huston, of counsel,) for respondent.

From an examination of the evidence in this case, I can see no sufficient reason to reverse the conclusions at which the surrogate arrived in regard to the alleged agreement between the deceased and Sarah C. Thumb. The surrogate has found that the deceased boarded with Sarah 0. Thumb for 30 years; that the value of board at the time in that locality was four dollars per week; and that she has never received any payment for the board and lodging so furnished. This, I think, should have been allowed. It is true that no specific claim for that amount was set forth in the written claim, which was devoted almost entirely to the statement of the alleged agreement by which she was to have all the property of the deceased that was left at the time of her death. Still, there is a request for such other relief as to the court may appear equitable in the premises. This was an accounting before the surrogate, and the person presenting this claim was one of the administrators of the estate. There was no order of reference, as is ordinarily the case where a claim against an estate is contested, where the referee would only be at liberty to determine upon the exact claim presented. It seems to me that the court here might have a little more latitude, under the claim made, than a referee appointed under the statute would. There has been no surprise. The time of the decedent’s board and lodging is not controverted, and the value of the board and lodging per week was admitted on the hearing. The decree, I think, should therefore be modified, allowing and directing to be paid to Sarah O. Thumb the sum of $120 in payment for such board and lodging, and that the decree, as so modified, should be affirmed, with costs to the appellant to be paid out of the estate. All concur.