James H. Elmore, Executor, etc., Appellant, v. Zipporah Jaques, Respondent

James H. Elmore, Executor, etc., Appellant, v. Zipporah Jaques, Respondent. (Submitted February 1, 1875; decided February 9, 1875.) This was an appeal from a judgment of General Term affirming a decree of the surrogate, upon an accounting by plaintiff, as executor of one Lydia J. Carle, deceased. (Reported below, 2 Hun, 130; 4 N. Y. S. C. [T. & C.], 674.) ) Among the assets of the testatrix was a note of the executor for $4,242.95, given upon settlement of his accounts as general agent of the testatrix, in which capacity he had acted a number of years, having charge and control of her property. The note represented the funds then in his hands. He continued to act in the same capacity up to the time of the death of the testatrix, which was about three years and a half after the giving of the note. Hpon the accounting, the executor claimed that he had made payments to and for the testatrix during her life, which more than balanced the note. Many of the payments were claimed to have been made to the testatrix personally, in small sums, for which no voucher was taken, and the executor had no direct evidence, his own testimony being excluded as within the prohibition of section 399 of the Code. It appeared, however, that he had frequently given money to the deceased; that in the account settled, when the note was given, he was allowed for payments of a similar kind, within the space of eight months, the sum of $450; that the only income of the deceased, other than what she received from the executor, was about $400 per annum; and there was evidence that the cost of her housekeeping was from $1,200 to $1,500 per annum. The executor had vouchers, by way of checks drawn by him to the order of the deceased and indorsed by her, for $550. The record did not show the items allowed by the surrogate, but a small sum, if any thing, was allowed for moneys paid directly to the testatrix, for which no vouchers were taken, and less than $1,000 for all moneys paid. Held, that the evidence sufficiently showed injustice was done to the executor, as it was fairly inferable that the deceased must have received from him at least $100 or $800 annually for necessary uses, and judgment therefore reversed. L. S. Chatfield for the appellant. John D. Pray for the respondent. [MAJORITY — Allen, J.,] Allen, J., reads for reversal of judgment of General Term and of decree of surrogate, and for remitting the proceedings to the surrogate for a rehearing of the claim and resettlement of the accounts. All concur; Folger and Rapallo, JJ., not sitting. Judgment accordingly.