(87 Misc. Rep. 559) In re SCHWARTZ'S ESTATE. (Surrogate's Court, Bronx County. November, 1914.) 1. EXECUTORS AND ADMINISTRATORS (§ 85*)-PROCEEDINGS BY ADMINISTRATOR -DISCOVERY OF ASSETS-JURISDICTION. Where, in proceedings brought by an administrator after September 1, 1914, to discover property withheld, the answer alleges title to or the right to the possession of the property, the surrogate has jurisdiction, under Laws 1914, c. 443, revising Code Civ. Proc. c. 18, not only to hear the evidence, but to determine the issue. [Ed. Note.--For other cases, see Executors and Administrators, Cent. Dig. §§ 323, 339-358; Dec. Dig. § 85.*] 2. EXECUTORS AND ADMINISTRATORS (§ 221*)-CLAIM AGAINST ESTATE-TESTIMONY-PROBATIVE EFFECT. The testimony of a claimant against an estate as to personal transactions with the decedent will not authorize a judgment for claimant, unless it is of the most convincing character. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 901-9031⁄2, 1858, 1861-1863, 1865, 1866, 1871-1874, 1876; Dec. Dig. § 221.*] 3. EXECUTORS AND ADMINISTRATORS (§ 85*)-DISCOVERY OF ASSETS-SUFFICIENCY OF EVIDENCE. Evidence in an administrator's proceeding under Code Civ. Proc. § 2675, to discover property withheld, held insufficient to show that a bank book and deposits therein noted were the property of respondent, and not of decedent, to whom the deposits were credited. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 323, 339-358; Dec. Dig. § 85.*] In the matter of the estate of Elsie Schwartz, deceased. Proceeding by administrator, under Code Civ. Proc. § 2675, to discover property withheld. Decree for petitioner. Frank F. Bergenfeld, of New York City, for administrator. SCHULZ, S. The petitioner claims that the respondent has in his possession a bank book in the name of the decedent, belonging to her, and evidencing deposits in the Dry Dock Savings Institution which he contends are her property. The respondent in his answer admits the possession of the book in question, but claims that the item of $400 shown by it to have been credited to the decedent on June 17, 1914, belonged to him, and he asks that the proceeding be dismissed, or, if not dismissed, that an order be entered which will protect his interests. [1] The answer, therefore, alleges title to, and a right to the possession of, at least a part of the property involved in the inquiry. In the recent revision of chapter 18 of the Code of Civil Procedure by Laws of 1914, chapter 443, in effect September 1, 1914, it is provided that this issue shall be heard and determined by the surrogate (Code Civ. Proc. § 2676); the jurisdiction of the surrogate being thus materially enlarged and changed from what it had been prior to such revision. See Code Civ. Proc. § 2710, in effect prior to September 1, 1914. The contention of the respondent is that on the 16th of June, 1914, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes or thereabouts, he drew a check, which is in evidence, to the order of the Dry Dock Savings Institution, in the sum of $400; that on the day that he drew the check, or the day thereafter, the decedent, who was his sister, called, and he requested her to deposit this check to his account in the Dry Dock Savings Institution; that the decedent went to the safe in the office of the respondent, took out a bank book, went to the bank, and made the deposit, this being the deposit of $400 shown by the bank book to have been made on June 17, 1914; that after the deposit was made she discovered that she had inadvertently deposited the check to her own account, instead of to the account of the respondent, she having an account in the same institution; that upon her return to the office she told the respondent about the matter, and offered to have it corrected; and that it was understood between them that the error would be corrected the next time she went to the bank. Upon the hearing counsel for the administrator examined the respondent as to personal transactions with the decedent, to which the respondent could not have testified, in his own behalf, over objection (Code Civ. Proc. § 829), and the respondent testified substantially to the facts above stated. Counsel agree that the burden of proving that the $400 deposit in the name of Elsie A. Dorf (the decedent's name prior to her marriage) is the property of the respondent rests upon him. [2, 3] It is well settled in this state that where testimony of a claimant against an estate is given as to personal transactions with the decedent, particularly where the alleged claim is not urged against the decedent during his or her lifetime, and is pressed only after death has silenced one of the parties, such testimony should be scrutinized with the greatest possible care, and a judgment should not be rendered upon it, unless it is of the most convincing character. Holt v. Tuite, 188 N. Y. 17, 80 N. E. 364, and cases cited; Matter of People's Trust Co., 79 Misc. Rep. 595, 141 N. Y. Supp. 201, and cases cited. If the testimony of the respondent is examined in the light most favorable to him, it appears that this deposit was made on June 17, 1914, in a bank located at the Bowery and Third street, New York City, the place of business of the respondent being at No. 6 West Eighteenth street, New York City; that about an hour thereafter he was advised of the error; that at the time stated the decedent's physical condition was such that there was a certainty that she would require medical attention and pass through a crisis not without danger of fatal result; that two months thereafter, to wit, about August 19th, he found out that his sister would be obliged to go to a hospital; that on August 22d she did go to the hospital, and remained there for one week before her death; and yet the respondent did nothing during all of that time either to correct the mistake made or to fortify himself with incontrovertible evidence that the error had been made, which he could easily have done. No memorandum of the error was made on the stub of his check book; no entry of any kind was made by his bookkeeper or by himself in his books, although he kept regular books of account. It is true the check with which the deposit was made was made payable directly to the bank, but I do not put the weight on that fact which the respondent urges that it merits. It was intended that the check be deposited in the Dry Dock Savings Institution, and while no doubt it would have been a better record of the transaction, as contended for by the administrator, if the check had been made to the decedent and then indorsed by her to the bank, the fact that it was made direct to the bank is not, in my opinion, a conclusive argument against the administrator's present contention. His evidence is corroborated in part by the testimony of one witness; but this witness is his sister-in-law. She resides in his house and is in his employ, and I feel she cannot be said to be entirely disinterested. The fact that the respondent is in the possession of the bank book might, perhaps, be regarded as an element of corroboration of his testimony; but in this case it is of no weight, because he himself admits that it was the custom of himself, his mother, and his sister, the decedent, to keep their bank books together in his safe in the office. As against the testimony of the respondent, a number of witness-. es were produced, two of whom are not related to the parties and have not been shown to be interested in any way. The latter testify that on or about the day of the funeral, during a conversation between the husband and the respondent, in which the husband requested a loan from the respondent to assist him in paying the funeral expenses of his deceased wife, the respondent said in words or in effect that the decedent had $500 in the bank. The amount in the Dry Dock Savings Institution, which is the only bank at the present time having any deposits of the decedent, so far as the evidence discloses, was $500, plus interest of $35 added on July 1, 1914. The deposit book of the decedent in the Dry Dock Savings Institution shows that on January 23, 1914, she drew from this bank $400. There is no proof of what she did with this amount. Her husband testifies that he had no knowledge of the withdrawal, or the expenditure thereof, and the respondent denied that he had received the $400 in question from her. It also appears from her bank book that she made comparatively frequent deposits in this bank, whereas the book of the respondent shows that he made a deposit on December 21, 1910, on December 14, 1911, and no deposit since that time. Again, the decedent resided at 752 Tremont avenue, in the borough of the Bronx, and it does not seem probable to me that in her condition she would go to her brother's office in Eighteenth street, Manhattan, and take his money to the savings bank for him, but rather that she went there to get and to deposit her own money. From all of the evidence I am of the opinion that the respondent has failed to sustain the burden of proof in this matter, and that the bank book and the deposits therein noted were the property of the decedent, and that her personal representative is entitled to the possession of the bank book and of the funds which it evidences are on deposit in the Dry Dock Savings Institution, and I so determine. Costs to the administrator to be taxed. Decreed accordingly. (87 Misc. Rep. 566) In re HUEBSCH et al. (Surrogate's Court, Bronx County. November, 1914.) 1. GUARDIAN AND WARD (§ 15*)—“GUARDIAN”—APPOINTMENT APPLICATION OF STATUTE. The term "guardian," as used in Code Civ. Proc. § 2650, relating to the appointment of guardians, includes guardians appointed by will, as well as general guardians. [Ed. Note.-For other cases, see Guardian and Ward, Cent. Dig. §§ 5664; Dec. Dig. § 15.* For other definitions, see Words and Phrases, First and Second Series, Guardian.] 2. GUARDIAN AND WARD (§ 15*)-APPOINTMENT OF GUARDIAN-BOND. Where, in the county of Bronx, a county containing part of a city of the first class, letters of guardianship are applied for pursuant to an appointment contained in a will, and the minor's estate is less than $2,000, the petitioner need not give bond, but the surrogate will, under Code Civ. Proc. § 2650, affecting guardians of such estates in such counties, order the guardian to collect the money jointly with a person named in the order. [Ed. Note. For other cases, see Guardian and Ward, Cent. Dig. §§ 5664; Dec. Dig. § 15.*] In the matters of Helen W. and Robert T. Huebsch. Application by guardian for appointment by will for letters of guardianship. Decree that letters issue. Hirleman & Vaughan, of New York City, for petitioner. SCHULZ, S. [1, 2] The will of the decedent was executed on the 22d day of September, 1914, at which time chapter 18 of the Code of Civil Procedure, as revised by Laws of 1914, chapter 443, was in effect. So far as material to the question at issue the will provides: "I hereby appoint Elizabeth Ward Robert T. Huebsch." guardian of Helen W. and The decedent, being the surviving parent of the minors, could nominate a guardian by his will. Domestic Relations Law (being Laws of 1909, c. 19, constituting Consol. Laws, c. 14) § 81. The amount of the estate of each minor is stated to be less than $600. Guardians by wili are now required to give bond as a necessary incident to their qualification. Section 2658 of the Code of Civil Procedure, so far as material, provides: * * * * "Where a will, containing the appointment of a guardian, is admitted to probate, the person appointed guardian must qualify by taking and filing his oath of office, and a bond as fixed by the surrogate, unless contrary to the express provision of the will or deed." The will in question contains no express provision contrary to this requirement, and it would seem that the petitioner must give a bond before letters can be issued to her, unless relieved by some other provision of law. Whether there is such a provision is the question now be For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes fore me for consideration and determination. Section 2650 of the Code, so far as material, provides: * "Before letters of guardianship of an infant's property are issued by the Surrogate's Court, the person appointed must, except where the infant's property does not exceed the sum of $2,000, execute to the infant, and file in the surrogate's office his bond. But in counties containing a city of the first or second class, or a part of such city, where the property of the infant does not exceed the sum of $2,000, the surrogate, before the issue of letters of guardianship of the infant's property, shall make an order directing that the guardian collect and receive the moneys and property of his ward jointly with a person designated in the order, and that all such moneys and other property, so far as the same are conveniently capable of deposit, shall be deposited in the name of such guardian, subject to the order of the surrogate, with such savings bank or safe deposit company as shall be in like manner designated. It will be noted that this section makes no distinction between general guardians and guardians appointed by will, but uses the general term "guardian." This term, as used in chapter 18 of the Code, is defined by the Code, section 2642, which, so far as material, is as follows: "A general guardian. A guardian by will is one appointed by the will of a father or mother in accordance with the provisions of the Domestic Relations Law and of section 1745 of the Code of Civil Procedure, who has duly qualified pursuant to the provisions of this article. A guardian by deed. * The term 'guardian' as used in this chapter applies to all such guardians, except ancillary guardians.” I think it follows as a necessary conclusion that the provisions of section 2650 of the Code of Civil Procedure are applicable to guardians appointed by wills, and I so hold. I do not believe that section 2658 of the Code makes the filing of a bond a prerequisite to the issuance of letters in all cases. This section and section 2650 must be read together, and I think, when so read, a reasonable construction is in harmony with the conclusion that I have reached. Letters will issue to the petitioner on these two applications without requiring her to file bonds, upon her complying with the remaining provisions of section 2658 of the Code, such letters to contain the substance of an order to be made before the issue of the same, providing for the deposit of the moneys and the control thereof as set forth in section 2650 of the Code of Civil Procedure. Decreed accordingly. In re WRIGHT'S ESTATE. (Surrogate's Court, New York County. January 14, 1915.) APPEAL AND ERROR (§ 936*)-PRESUMPTION-COSTS. In view of the fact that under Code Civ. Proc. §§ 2745-2747, costs in the Surrogate's Court are in the discretion of the surrogate, and that no costs were allowed by the surrogate in a proceeding to assess a tax on a decedent's estate, and of the fact that the provision of section 2589 that the appellate court may award to "the successful party the costs of the appeal" gives it no authority to award costs in the proceeding in the Surrogate's Court, it will not be presumed that the Appellate Division intended to award to the appellant any costs in a proceeding instituted in *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |