Nostrand v. Ditmis — 32 N.Y. St. Rep. 1102

Majority

p. 1102

Henry Nostrand et al., Ex’rs, Resp’ts, v. John D. Ditmis et al., Ex’rs, App’lts.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

Husband and wife — Liability of husband fob mismanagement of sepabate ESTATE OF WIFE.

On reference of a claim against a decedent’s estate by his wife, the referee on sufficient evidence found that she had a separate estate which was managed by her husband; that the husband kept an account in which he credited himself with sums claimed to have been paid out for her; that most of such charges were improper, and for disbursements for which he was legally liable; that the amount of such charges was improperly retained by him,and that no part of the account except two items, which were deducted, was barred by the statute. Held, that the claim was properly-allowed.

Appeal by defendants, as executors of Martin Gr. Johnson, deceased, from judgment and from order confirming report of referee and denying motion to set it aside.

Wm. J. Sayres (D. W.Northrup, of counsel), for app’lts; Josiah T Marean, for resp’ts.

Margaret T. Johnson was the wife of Martin Gr. Johnson, and after his death she presented a claim to his executors against his estate, which was disputed and referred to a referee under the statute, and the referee made a report in favor of the claimant, upon which a judgment has been entered, and from which the defendants have appealed to this court.

The claim was for money collected from time to time during many years by the husband, and improperly expended by him for his own benefit

p. 1103

Mrs. Johnson at the time of her marriage had a separate estate, -consisting of both real and personal property, which she retained during all the period of her married life. Immediately after her marriage her husband assumed the possession and control of her property, and collected the rents and income thereof down to the "time of his death. He kept accounts, in which he charged himself with the money he received from time to time, and credited himself with such disbursements as he claimed should be paid -out of the money of his wife.

Most of the charges for money so paid out were improper and for disbursements made by Johnson for" himself, and which he could not legally charge against his wife, and the referee found that of the money so received by Johnson he retained and never paid over to the claimant the sum of $7,814.83, the amount of the items which were so improperly charged.

The referee further found that Johnson was a trustee of the property of his wife, and liable as such for the income therefrom which came into his hands, and that the sum above named which he did not pay over to her was improperly retained.

The referee also' found that the statute of limitations had not run against any part of the account from September, 1869, to January, 1887, except two items, which he deducted.

The findings and conclusions of the referee are fully sustained by the evidence,*md we concur in both. '

We have examined all the exceptions in the record, and they present no error.

The judgment should, therefore, be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.