In re the Judicial Settlement of Accounts of Central Trust Co. ( 1934 )

Decree so far as appealed from modified so as to provide that the debt and offset against the trust fund be fixed at the sum of $6,017.03 and as modified affirmed, with one bill of costs to the respondents against the appellant, payable out of the estate. Memorandum. The undisputed evidence shows the value of the bonds in question at the date of their delivery to have been 96|, making a total of $4,837.50. The surrogate in his decree has valued the bonds at $4,881.25, making a difference of $43.75. An adjustment of interest would bring the total amount of the indebtedness owed by appellant to $6,017.03 instead of $6,071.26, as stated in the decree. All concur, except Sears, P. J., and Taylor, J., who dissent and vote for reversal on the law and a new trial on the ground that Exhibit 1 was erroneously received in evidence and that the testimony of Henry C. Hesselink as to his conversation with the testatrix was erroneously admitted. The exhibit was signed at the time that the testatrix handed the bonds to Hesselink, her agent, for delivery by him to the brokers. The transaction which we are now considering was entirely between the testatrix and her nephew, Jack B. Headley. The contents of the exhibit and the testatrix’s statement to Hesselink were not communicated to respondent [appellant] Jack B. Headley, or even to the brokers, and her statement to Hesselink of her intention and the writing made at the time she constituted Hesselink her agent were no part of the transaction between herself and Jack B. Headley which is now before the court. We cannot say what the decision of the surrogate would have been upon the record with this testimony and exhibit expunged and, therefore, vote for a new trial.