Appeal from Surrogate's Court, Rensselaer County.
Judicial settlement of the estate of Ann McDonough, deceased. From a decree settling the accounts of Catherine McDonough, as administratrix of Ann McDonough, Ann E. Morton, personally and as executrix of Catherine McDonough, appeals. Modified and affirmed.
Thomas S. Fagan (H. D. Bailey, of counsel), for appellant.
O'Brien & Murray (M. L. Murray, of counsel), for respondent.
Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.
JOHN M. KELLOGG, J.
At the death of Ann McDonough, October 20, 1904, she and her sisters, Elizabeth McDonough, Catherine [117 N.Y.S. 259] McDonough, and her niece, Ann E. Morton, the appellant, were residing together as one family; Ann apparently being the head of the family. They were all old ladies, the niece being about 69 years old. The house was the property of Ann individually or of her and the others. The furniture and personal property was formerly the property of the mother of the appellant Morton. There was on deposit in the name of Ann in savings banks $1,701.83. After the death of Ann, the remaining sisters and the niece continued to form the family until July 5, 1905, when Elizabeth died, and thereafter Catherine and her niece constituted the family, and they believed that they alone were entitled to the estate of Ann and Elizabeth, being unaware of the existence of the respondent Rebecca McDonough, half-sister. Catherine, with funds belonging to her or to her and the appellant Morton, paid the doctor's bill and funeral expenses of Ann, amounting to $350. Letters of administration were issued to Catherine upon the estate of Ann in August, 1905, and shortly thereafter Ann's accounts in the savings banks were closed; the money being transferred to the individual credit of Catherine. This was done with the knowledge and action of Catherine and the appellant Morton. Catherine died October 4, 1905, leaving a last will and testament by which the appellant Morton is the sole executrix and legatee, and, after letters were issued to her as executrix, she paid the attorney $50 for his services in obtaining letters of administration to Catherine on the estate of Ann, and also the transfer tax of $216.42, which was assessed against her on account of her interest in Ann's estate, which sum apparently was based wholly or in a large part upon real estate received by her from Ann, and which in any event need not be considered here, as it was an item which should be paid by her personally, and not by Ann's estate. She also paid $100 to her attorney for services upon this accounting.
The funeral expenses and the attorney's bill were not primary debts against the estate of Ann, but were obligations existing against Catherine personally, but she could reimburse herself from the estate after the items were approved by the surrogate. Catherine could not have been compelled to distribute or pay over the funds of the estate without an allowance to her for so much of those items as met the approval of the surrogate; and her executrix occupies the same position. Those items and the doctor's bill have been approved by the surrogate, and there is no reason why they should not be credited to Catherine's executrix upon this accounting. The payment by the appellant Morton of some of those items after the death of Catherine was not an act of administration upon the estate of Ann, but was a payment by her of the debts of her testatrix, which payments, when approved by the surrogate, she is entitled to deduct from the moneys due by Catherine to the estate of Ann. It is immaterial whether Catherine took the money from Ann's bank account or from her own pocket with which she paid the doctor's bill and funeral expenses. They were disbursements upon account of estate, and must be allowed her. Catherine and the appellant Morton continued to reside as a family in substantially the same manner as during the lifetime of Ann [117 N.Y.S. 260] and Elizabeth. They acted together, and the taking of the moneys from the bank and putting the same in the private account of Catherine, while it could legally be done only by Catherine, was, in effect, the act of both, and was, in substance, an appropriation of the funds for the benefit of the family as it then existed, and, in effect, may be treated as a family settlement and adjustment of the estate between them. For all practical purposes, the estate was administered between all the parties whom the executrix understood were entitled to share therein, and it seems unnecessary and inequitable to compel the appellant Morton to raise the funds and turn the whole original estate over to the new administratrix, the only effect of which can be to make trouble and additional executors' and attorneys' fees. It is a needless formality under the circumstances of this case for the appellant Morton to pay these funds over to the new administratrix, and then for her to hand them back to the former less her commissions. In fact, Catherine and the appellant Morton have received a larger share from the estate than belonged to them, and they should only be required to pay over the excess. We should treat that done which the parties deemed done; that is, that the estate between the executrix and the appellant Morton was settled. In order that Rebecca may receive her share, the appellant Morton individually and as executrix must pay it. Catherine's acts were irregular, but were intended for the best interests of all concerned. If she had been right in assuming that only she and her niece were interested in the estate, no harm could follow; and it is only right and proper that so far as they are concerned to treat this as a family settlement which under proper circumstances is always favored, but the unknown next of kin cannot be prejudiced by their acts. It does not appear whether Elizabeth left a will or not, or whether she left debts or not, and therefore the share coming to her from Ann's estate cannot be treated as administered.
The decree therefore should be modified as follows:
(1) The above items should be credited to the executrix.
(2) Catherine and the appellant Morton should be treated as having received their one-quarter share of Ann's estate.
(3) The one-quarter share of Ann's estate belonging to Rebecca and the one-quarter share belonging to the estate of Elizabeth should be paid to the administratrix of Ann, to be disposed of according to law.
(4) The appellant Morton upon this accounting should be allowed full commissions on all moneys received and paid out, including the shares of herself and Catherine, and half commissions upon the sums she pays over to the administratrix of Ann.
(5) Costs in the Surrogate's Court should be allowed to the appellant Morton from the estate before the shares are ascertained; costs should be allowed the appellant Morton in this court to be ...