John Reed et al., Appellants, v. Charlotte Reed, Administratrix, etc., Respondent

John Reed et al., Appellants, v. Charlotte Reed, Administratrix, etc., Respondent. (Argued March 24, 1873; decided May 6, 1873.) Where the decree of a surrogate has been affirmed by the Supreme Court upon appeal, and remitted by that court for further proceedings, the surrogate cannot open the decree and grant a rehearing for alleged error in law, but must give effect to the judgment of the appellate court. A surrogate can only award taxable costs to litigants. It is error to allow a sum in gross to the counsel of the prosecuting party. A note of a third person, given upon a consideration moving from the'husband, and by direction of the husband, made payable to the wife, and by ' him delivered to her with intent to give it to her, is a valid gift from the husband to the wife, and an equitable title to the note vests in her. This was an appeal from an order of the General Term of the Supreme Court of the second judicial department, affirming a decree of the surrogate of Queens county, allowing certain claims against the estate of John Reed, deceased. The claims in question were allowed with others by a former decree, from which an appeal was taken; that decree was reversed by the Supreme Court as to a.single claim, "not here in question, and affirmed as to the residue, and the proceedings, remitted for a further hearing. ¡ From this order there was no appeal. Upon, the remittitur the: surrogate made a decree directing a sale of real property for the payment of debts. The property was,, sold, and the proceeds brought in for distribution. Upon the hearing as to the distribution, the present appellants, children of the intestate, asked that the claims be disallowed, and the previous .decree reopened-, for error in law-, This application; .was denied. Held,- no error; that the judgment of. the Supreme Court was final, and the surrogate had no discretion in the premises. ' - ■ One of the claims allowed was a noté given by the intestate to respondent, his wife. Upon the settlement, of a claim against a third person in 1846, at the request of the intestate, a note of $1,000 was given by the debtor, payable to the order of Mrs. Reed, and was delivered to her. The wife retained possession of the note until 1855, and the note was at all times recognized as her property by the intestate. In 1855, intestate, with the assent of the wife, surrendered this note, and another of $360 belonging to her, in. payment for property purchased by him, and gave his note to his wife for the amount thereof, with interest. Held, that the circumstances attending the execution and delivery of the first note constituted it a valid gift in equity from the husband to the wife, and vested in her an equitable title as against the nextof kin to the husband. (See Borst v. Spelmcm, 4 N. Y., 284; Our- ■ tis v. Fox, 47 id., 299.) That the subsequent transaction evidenced a loan from the wifé which was to be repaid by the husband, or from his estate, and that the claim of the wife therefor was properly allowed. The surrogate allowed to the counsel for the administratrix upon the settlement- of the accounts $250. Held, error; that taxable costs only could be awarded. (See Burtis v. Dodge, 1 Barb. Ch., 91; Devin v. - Patohin, 26 N. Y., 441; Lee v. Lee, 39 Barb., 172.) John J. Armstrong for the appellants. Wm. II. Onderdonk for the respondent. [MAJORITY — Allen, J.,] Allen, J., reads opinion for affirmance, except as to allowance of $250 counsel fees; as to that, for reversal of the judgment of the Supreme Court and decree of the surrogate, without costs to either party. All concur. Judgment accordingly.