In re the Final Accounting of Rusko , 41 N.Y. Sup. Ct. 334 ( 1884 )

Barnard, P. J.:

The decision of this case depends on a question of fact, which either has not been pass ed upon, or has been erroneously found in favor of respondent, by the learned surrogate. Ezra Dean died intestate in 1871. He left a mother and no children. He had been married to the respondent, and had lived with her for over twenty years. She left him and lived with .one James Wood, openly, as his wife, in the immediate neighborhood of Dean. Busko, the administrator, was a half-brother of Dean. He testified that after the death of Dean he went to the respondent and asked her if she intended to-administer on the estate of Ezra Dean, and she replied that she was not his widow, that she had a bill of divorce from him and had married Wood, and had no interest in the Dean estate. Busko thereupon took out letters of administration on the estate of his brother, paid his debts and funeral expenses, and paid over the balance to his mother, as sole next of kin. That was right, if there was no widow. Mrs. Dean, or Wood, denies that she so stated to Busko. Upon this question, I' think the evidence supports Busko. He at once swore there was no widow. This would have been an audacious falsehood and one not probable, in view of the fact that the affidavit was matter of record and made while Mrs. Dean, or Wood, lived in the immediate neighborhood. The administrator at once filed his inventory. Again, the respondent’s acts support the administrator in his testimony. The respondent knew of the death of Dean; saw him dead, and did not assert her claim as widow until after nearly eight years had expired from the granting of letters to Busko. Finally, it is proved that the respondent told Nathaniel Austin and Isaac II. Bishop that she had a bill from Déan and was married to Wood in the lifetime of deceased. The evidence, I think, taken together, establishes the fact that- the respondent denied that she was Dean’s widow, and acting upon this denial the administrator received some $425 in cash, paid the debts and expenses, which were $468, as allowed by the surrogate, and then transferred the security, a savings bank book, for the balance-of the estate, which was small, to the mother of the deceased. These facts show a complete administration of the estate by the administrator, which the respondent is estopped from now denying. By her act and declaration she had caused the administrator to part with that part of the estate which she now claims. When a party has by his declaration or consent induced another to act in a particular manner, he will not afterwards be permitted to deny the truth of the admission if the consequence would be to work an injury to such other person. (Bank of Genesee v. Patchin Bank, 19 N. Y., 312; McMasters v. Insurance Co. North America, 55 id., 229; Blair v. Wait, 69 id., 113; Boardman v. Lake Shore, etc., R. R., 84 id., 182.)

The decree should, therefore, be reversed and the proceedings remitted to the surrogate to dismiss the petition, with costs.

Dykman and Peatt, J.J., concurred.

Decree of surrogate reversed and proceedings remitted to surrogate to dismiss petition, with costs.