Citation Numbers: 97 A.D. 116, 89 N.Y.S. 654
Judges: Jenks
Filed Date: 7/15/1904
Status: Precedential
Modified Date: 1/13/2023
The claimant and the executor agreed that the surrogate .upon the judicial settlement of the executor’s accounts should hear and determine two claims against the estate which had been rejected. The learned surrogate disallowed the first claim save the item of fourteen dollars paid to a druggist for medicines. Another item of sixty dollars paid for taxes is not now disputed. The second claim was allowed. It is made up of sixty-six dollars for interest on a loan to the testator, one hundred dollars and three hundred and thirty dollars, both for the care and nursing of the testator at different periods, and seventy-two dollars for his: board.
The proof is insufficient to establish the payment of fourteen dollars for medicines. It consists of the testimony of the brother of. the claimant, Mr. Steichelmann, that his father, the testator, lived with the testator’s daughter between January 1, 1899, and July 1,
Aside from proof that the testator lived with the claimant, and was there sick in mind and body, so as to require constant attention and nursing, and aside from certain self-serving statements of the claimant to outsiders, the second claim rests mainly, if not wholly, upon the testimony of the said Mr. Steichelmann. Without it, the proof is meagre and inadequate. There is nothing unusual in the circumstance that a father, feeble in mind and body, lived with his daughter, and was nursed and cared for by her. Even if, in the course of things, it was natural that she was entitled to compensation for her filial conduct, we may find that compensation in the will which was made wholly and exclusively in her favor. It appears from the record that objections to probate were filed on behalf of another daughter, which were finally withdrawn. And it also appears in the executor’s schedules that the claimant, once the sole devisee and legatee, is entitled to one-half of the estate, that the other sister is entitled to óne-quarter, and that others are entitled to certain interests therein. Evidently, there was a - compromise which distributed the estate counter to the provisions of the will. • If the will, as drawn, had been probated, then, of course, the claimant had no-reason to file her claims, but in view of the final disposition, the benefit of establishing her claims is obvious.
The said witness, on his cross-examination, testified: “ I was paid $250 out of the estate by. my sister. It. was paid for the interest I might have in the estate. It was paid to me by Mr. Steenwerth, the executor, at my sister’s request. I was at Mr. Wendel’s (the counsel fdr the objectors) office at one time. Q. Ready to contest this claim of your sister?, [Objected to;, objection sustained; exception.] ” I think that-the exception was well taken. The $250 was not paid to the witness to discharge any debt, for he testifies that it, was paid “ for the interest I might hav¿ in the estate.” His name does not appear in the .schedule- of those, entitled to share in the
The decree of the Surrogate’s Court should be reversed.
All concurred.
Decree of the Surrogate’s Court of Kings county reversed and proceedings remitted for disposition in accordance with the opinion of Jenks, J., costs to abide the final award of costs.