In re the Judicial Settlement of the Accounts of Hallenbeck , 104 N.Y.S. 568 ( 1907 )

Chester, J.:

It is claimed that the surrogate erred in not allowing anything to the appellant for commissions of Margaret L. Hallenbeck as administratrix of her husband’s estate. The place where such commissions should have been- allowed, if she were entitled to any, was on the- accounting of Smith as her executor to ascertain the liability of her estate to that of her husband for her acts as administratrix. There is nothing here to show whether such commissions were there allowed or disallowed. It may be presumed that they were there made the subject of adjudication one way or the other, for, as a final result, there was found to be quite an amount due from her estate to that of her husband, which' amount was there directed to be paid over to Charles W. Hallenbeck as administrator de bonis, non. The surrogate was, therefore, correct in allowing commissions in this matter to no one but the accounting party.

In the next place the decree is attacked because of the conclusion that Almina Hallenbeck, the mother of -Peter and Charles, is the owner of $1,000 of the moneys secured to be paid by the mortgage specified in the inventory -as having been given by Cornelius and Lydia Hallenbeck to Peter and Charles Hallenbeck. It appears that .that mortgage was given by the mortgagors to, secure the sum of $4,000 ; that $500 thereof had been paid; that at the time of the execution and delivery of such mortgage Almina Hal-. lenbeck advanced: to the mortgagors $1,000 of the moneys secured thereby, which amount:-never-had béén repaid, and that when interest upon the mortgage was paid to Peter and Charles the interest on this $1,000 was turned over to Almina.' notwithstanding these facts the mortgage was erroneously inventoried by stating that one-half thereof, amounting to $1,750, belonged to the estate of Peter. All that the surrogate’s decree does is to correct the amount of this inventory and the accounts based thereon-by showing that $1,250 of this mortgage only belonged to the estate o.f Peter. This was not in any sense the proof of á claim against an estate so as to require the formalities incident to such proof, but was a holding that the mortgagors owed Almina $1,000 and the estate of Peter and Charles- each $1,250, and on the facts found, which are practically undisputed, the conclusión the surrogate-reached necessarily follows and was correct.

Again, the appellant claims that the surrogate erred in holding that a note of $5",000, made by Peter and Charles, dated December 23, -1893, and payable to Almina Hal-lenbeck, was á valid and existing joint obligation of Peter and Charles until - its payment by Charles; that' the same was not outlawed, and that upon its payment by Charles he became entitled to. contribution from the estate pf Peter for one-half of the amount so paid. It is insisted that this note is barred by the general Statute of Limitations (Code Civ'. Proc. § 382) and also by. the short Statute of Limitations.(Code Civ.. Proc. §1822). It appears that Almina ITallenbeck presented a claim to Margaret L. Hallenbeck as administratrix of Peter A. Hallenbeck óñ said note and that "the claim was rejected by the administratrix on tlie 29th day of January, 1903. The administratrix died the following July and Charles W. ITallenbeck was appointed in her place as - administrator de bonis non. Within-one or two days after bis appointment and before the short Statute of Limitations had run, Charles admitted the claim and made a promise to Almina that he would pay the note in question, and.thereafter and before his. accounting he did pay it. If he liad not "made this promise ■ when he did Almina would undoubtedly have brought a suit against the estate of Peter .upon the note so as- to prevent the running of the Statute' of Limitations. It is fair to presume that the .promise which she had received from the administrator to pay the note was relied upon by her and prevented her from taking the necessary steps, to prevént the statute, from running as against her large • claim: There appears to be no question about the genuineness of the note. She . had -a right to assume under such circumstances that the rejection by the deceased executor was either recalled or waived.. Under these facts the surrogate was correct in holding that the short- Statute of Limitations, imposed-by section 1822 of the Code of Civil Procedure, had.not run against the claim. It also appeared by entirely creditable evidence, and it is undisputed, ■that on the 1st day of April, 1901, Charles paid to Almina twenty-five dollars interest on said note, and that the same was indorsed thereupon, and that such payment was made at the request of Peter, and in his presence, and from the joint moneys of Peter and Charles, and the surrogate has so found on sufficient .evidence. ' That being so the note was not barred by the six-year Statute of Limitations.'

The further claim is made by the appellant that the conclusion that certain articles of personal property were improperly set off, as exempt articles to the -widow of the deceased, was wrong under the law. The proof is that these articles were jointly owned by Peter and Charles at the time of the death of Peter. In Baucus v. Stover (24 Hun, 109) it was held that where a testator had but a half interest in personal property that it could not be set apart to the widow, because it was not such an ownership and possession of property by the deceased or his personal representatives as would permit their delivery to the widow, and, therefore, they could not be set off to her. While that' case was reversed on appeal, it was on other grounds than the one here stated. (89 N. Y. 1.)

The decree should be affirmed, with costs.

Decree unanimously affirmed, with costs.