In re the Petition for an Accounting by Bedell — 15 N.Y. St. Rep. 829

Majority

p. 829

Matter of the Petition for an Accounting by William B. Bedell as administrator, etc.

(Supreme Court, General Term, Second Department,

Filed May 14, 1888.)

Headnote

Distributions—What constitutes payment of distributive share.

The petitioner, as administrator of his father, retained the sum of $500, which should have been divided among his brothers and sisters. The brother, as administrator of his mother, notified him that unless he distributed the sum above named his share in the estate of his mother, viz., $255.60, would be divided among his brother and sisters, to which he replied that it would be all right, and that he should have to abide by it. In both cases the next of kin were the same. Held, that this constituted a payment jn full of the petitioner’s share.

Appeal from a decree of the surrogate’s court of Kings county.

Arthur Vandewater, for resp’t; George A. Mott, for app’lt.

—The evidence satisfactorily shows that the petitioner, George 0. Bedell, retained in his hands as administrator of his father’s estate, the sum of $500, which of right should have been divided among his brother and sisters. It also satisfactorily appears that William B. Be-dell, as administrator of his mother’s estate, divided among his brother and sisters $255.60, which was the distributive share of George 0. Bedell in his mother’s estate. The $500 should have been paid the next of kin in April, 1866, by the petitioner as administrator of his father’s estate. The mother’s estate was ready for distribution in March, 1869. The heirs of the two estates were identical. Before the division of the mother’s estate by William B. Bedell, the petitioner was asked for the distribution of the $500, and was told that if he did not divide this sum with the heirs, his share in his mother’s estate would not be reckoned in his favor, and he replied that “would be all right, and he would have to abide by it.” The administrator of Mrs. Be-dell in 1869 did divide the estate of his mother, excluding George 0. Bedell. George was well aware of this distribu

p. 830

tion, and the matter has remained unchanged for nearly twenty years. Upon this evidence I should unhesitatingly find that the petitioner’s share in his mother’s estate was paid in full in 1869.

He consented to the distribution provided he could retain nearly a double portion which should have come back to the other heirs.

The question, therefore, is not one of offset, but of payment, and that can be proved in answer to the petition.

Decree reversed, with costs, and a new trial granted.

Dykman, J., concurs.

—It is not disputed that petitioner would have' a claim to a share in the estate of the intestate were it not. for the settlement and compromise of his alleged claim with the former administrator and the other parties interested in the estate. But it is alleged that a compromise was made-eighteen years ago by which the petitioner’s claim was extinguished, and the whole estate long since paid out to other parties.

The referee reports that the claim is thus a disputed one-which the surrogate cannot order to be paid. In this opinion we concur.

It follows that the order appealed from should be reversed, with costs.