Kydd v. Dalrymple ( 1884 )

The Surrogate.

By § 386 of the Code, if this could be regarded as a, mutual, open and current account, the claimant would be entitled, fairly, to recover from April 33rd, 1883, that being the date of the last item on his side of the account; but it does not appear to have commenced to be such an account until about June, 1877. The executor, it is stated, then received the decedent’s legacy, and managed her affairs for her from that time until her death. All the items on both sides of the account, which was kept solely by the executor, are for moneys received arid disbursed by him. It does not appear that decedent kept any account whatever. He was a trusted brother, who managed the whole matter for her. I do not think he can recover except for the period covered by his management of her legacy, unless there was a payment on account of the other items of his alleged claim, the effect of which is provided for in § • 395. I have no proof that there was any such payment. He is the executor, and the law regards his claim with suspicion. I cannot assume that he so applied any of the money, and, therefore, he cannot avail himself of the provisions of that section.

The affidavit verifying the claim fails to show that there are no offsets to it, but as that was not made a ground of objection, I do not feel at liberty to reject the whole, for that reason.

Disposing of a case like this, without evidence other than the assertions and denials of counsel, is very unsatisfactory. From my recollection of what occurred before me, I do not feel authorized to allow to this brother of the testatrix any of the amounts paid by him for his sister’s board anterior to the commencement of the mutual account. It strikes me that, if he did not intend the payments made for her board, prior to that time, as gratuities, he would have at once reimbursed himself those outlays on receiving the fund bequeathed to her.

Decreed accordingly.