Thompson v. Thompson , 75 N.Y.S. 401 ( 1902 )

Parker, P. J.:

If the balance which at the time of the settlement was found to be due from the defendant as administrator included the $600 which the complaint claims was then “ entrusted ” by the next of kin to the defendant to meet a possible demand for an inheritance tax against the estate, then it might perhaps.be argued.that a retention of the same by the defendant, and- a release therefor, was equivalent to a receipt by him of their money, advanced by them to protect him personally against such a claim; and his promise to repay the plaintiff sixty dollars thereof as the amount so deposited by her, in the event that he did not have to use the same, might be considered a promise made by the defendant, in his individual character, under an arrangement made subsequent to the transaction to which the . release referred. It might then be considered that she had received the sixty dollars and receipted for it, and had thereafter returned it to the defendant for the purpose aforesaid. Such a subsequent arrangement would not be affected by the release.

But the fact, as it appears from the evidence introduced in her behalf, is, that, the defendant deducted the sum of $600 from the assets before the balance for distribution was agreed upon. The share then agreed to be due her, and upon the payment of which to her she executed the release, was ascertained upon the theory that it did not include any part of the $600. He deducted that as a possible necessary expenditure, before he struck the balance for distribution, and so such $600 was no more nor less than assets of the estate left in his hands for subsequent distribution. ' He retained it solely as administrator, and I am at a loss to understand why he does not still hold it as such. He received it from the estate as part of its assets.' According to her claim, as it appears, upon the trial, he has never yet distributed it, and, therefore, his liability to. account for and pay it over is that of an administrator only.

From this view of the transaction — and which is the one stated by the respondent in her points—it is manifest that the plaintiff is not entitled to maintain this action.

Her claim is squarely in conflict with the release which she then executed. Such release and the surrogate’s decree subsequently entered is a flat bar to her recovery here, and on the evidence before it the jury was not warranted in rendering the verdict which it did render. Alb objections and exceptions necessary to raise this question were taken by the defendant upon the trial. The judgment and order, therefore, must be reversed and a new trial granted.

All concurred, except Fursman, J., dissenting in an opinion in which Kellogg, J., concurred.