In re the Accounting of Pierson ( 1953 )

Claimant had the burden of proof to establish his claim to the commissions received from the trusts. While varying inferences may be drawn from the proof there is not sufficient to justify upsetting the findings of the Surrogate who was authorized on this record to make the determination that the relations between claimant and the decedent did not unequivocally establish the intention to repay the commissions transferred or the equivalent in the will of the survivor of the decedent and decedent’s wife. The accounting records, the manner of handling the income taxes on the commissions and the estate tax return, may be found to support the decree of the learned Surrogate. On this construction it is not a necessary conclusion that claimant’s version of their relations constitute» intentional assertion of an unjustified claim. Decree, so far as appealed from, unanimously affirmed, with costs. Present — Peck, P. J., Dore, Cohn, Callahan and Breitel, JJ.