In re Cozine — 98 N.Y.S. 1041

Majority

p. 1041

(113 App. Div. 22)

In re COZINE.

(Supreme Court, Appellate Division, Second Department.

May 4, 1906.)

Headnote

Administrators—Accounting—Burden of Proof.

Where an administrator has made payments on his personal and individual claims against the estate, the burden of proof is on him to show that the claims were proper.

[Ed. Note.—For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, § 2170.]

On rehearing.

Former opinion modified.

For former opinion, see 93 N. Y. Supp. 557 .

Argued before HIRSCHBERG, P. J., and JENKS, HOOKER, and MIEEER, JJ.

This appeal has been reargued by order of the court. On the original hearing, we modified the decree by striking out certain items which had been paid for taxes, and affirmed the decree as thus modified. See Matter of Cozine, 104 App. Div. 182 , 93 N. Y. Supp. 557 . The principal error then alleged-by the appellant related to the reception of evidence given by the administrator involving personal transactions between himself and the intestate. We held that this evidence was chargeable to the scope-and form of inquiries addressed by the appellant’s counsel to the administrator, and that the learned surrogate did not err in refusing to strike it out after it had been thus elicited. We also held, however, that, the burden of' proof was on the appellant, as contestant, to show that certain payments made by the administrator were improper charges against the estate. In this we erred, because the alleged payments were of the administrator’s personal or individual claims against the estate. This fact was not brought .to our attention. In such case there is no presumption in favor of the claims, but, on the contrary, the rule of law applicable requires that the claims should be supported by clear and satisfactory evidence. Matter of Humfreville, 6 App. Div. 535 , 39 N. Y. Supp. 550 ; Matter of Smith, 75 App. Div. 339 , 341, 78 N. Y. Supp. 130 .

The reargument has been had only on the question of the sufficiency of the proof to establish three disputed items claimed by the administrator to be proper charges in his favor against the estate, amounting respectively to the sums of $2,000, $1,300, and $1,450. The appellant, in moving for the reargúment, distinctly disclaimed any desire to reopen the question of the competency of the evidence given by the administrator as to thé personal transactions with the deceased.

In view of this fact, and accepting that evidence as competent, we are of the opinion that the $2,000 item was .sufficiently proved. Indeed, the learned counsel for the respondent conceded, on the reargument, that the record contained evidence supporting that item. We think otherwise, however, as to the two other items; that is, the one of $1,300 charged by the administrator as his equity in the house, No. 803 Sterling Place, .Borough of Brooklyn, and the one of $1,450 charged by the administrator for money loaned to the deceased to ap

p. 1042

ply upon the purchase price of the house, No. 1202 De Graw street in said borough. As to those -two items, a referee should be appointed pursuant to section 2586 of the Code of Civil Procedure, to take further testimony; the burden of proof being on the administrator in the establishment of the validity of these claims, and the referee to report such testimony to this court with his opinion.

All concur.