In re the Estate of Vandemark

New York Surrogate's Court

In re the Estate of Vandemark

30 Misc. 2d 471, 219 N.Y.S.2d 284, 1961 N.Y. Misc. LEXIS 2487

DecidedAugust 16, 1961

StatusPublished

This text of 30 Misc. 2d 471 (In re the Estate of Vandemark) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Vandemark, 30 Misc. 2d 471, 219 N.Y.S.2d 284, 1961 N.Y. Misc. LEXIS 2487 (N.Y. Super. Ct. 1961).

Pincite

Opinion

Francis X. Tucker, S.

On the judicial settlement of the executors ’ accounts Beulah E. Hutchins, a sister of the coexecutors and a residuary legatee, seeks to enforce payment of a check given by Byron 0. Vandemark, one of the executors, to Louise E. Vandemark, the deceased, during her lifetime.

The testimony indicates that on or about December 14, 1954 Byron 0. Vandemark delivered the check in the amount of $1,200 to his mother in payment of a mortgage she held upon real property he was selling. She died on September 16, 1955 without having presented the check for payment. The check was not included as an asset of the estate at the time the tax proceeding was filed, and the testimony indicates that it was discovered sometime thereafter in a cabinet in the deceased’s home.

Byron C. Vandemark maintains that the deceased was in ill health at the time the check was delivered and continued in that state up to the time of her death. For her convenience and at her request she held the check with the understanding that he would provide her with certain necessities and small sums of money from time to time and credit them against the check. As evidence of this agreement Byron 0. Vandemark submitted proof to the effect that the check was not presented for payment, that certain expenditures were made in keeping with the agreement with the deceased, and memoranda was presented indicating a total of approximately $1,200. He also presented evidence that the deceased had no income from other sources and that the net withdrawals from her savings accounts during that period of time was $192. There was evidence as to her living expenses which generally indicated that her needs approximated the amount Mr. Vandemark claims to have, advanced. Beulah E. Hutchins produced no evidence to indicate other sources of funds or a reasonable explanation as to how the decedent could live approximately nine months on $192.

On all of the evidence Byron C. Vandemark has sustained the burden of establishing the payment of the check in accordance with his agreement with the deceased.

Free access — add to your briefcase to read the full text and ask questions with AI

Francis X. Tucker, S.

On the judicial settlement of the executors ’ accounts Beulah E. Hutchins, a sister of the coexecutors and a residuary legatee, seeks to enforce payment of a check given by Byron 0. Vandemark, one of the executors, to Louise E. Vandemark, the deceased, during her lifetime.

The testimony indicates that on or about December 14, 1954 Byron 0. Vandemark delivered the check in the amount of $1,200 to his mother in payment of a mortgage she held upon real property he was selling. She died on September 16, 1955 without having presented the check for payment. The check was not included as an asset of the estate at the time the tax proceeding was filed, and the testimony indicates that it was discovered sometime thereafter in a cabinet in the deceased’s home.

Byron C. Vandemark maintains that the deceased was in ill health at the time the check was delivered and continued in that state up to the time of her death. For her convenience and at her request she held the check with the understanding that he would provide her with certain necessities and small sums of money from time to time and credit them against the check. As evidence of this agreement Byron 0. Vandemark submitted proof to the effect that the check was not presented for payment, that certain expenditures were made in keeping with the agreement with the deceased, and memoranda was presented indicating a total of approximately $1,200. He also presented evidence that the deceased had no income from other sources and that the net withdrawals from her savings accounts during that period of time was $192. There was evidence as to her living expenses which generally indicated that her needs approximated the amount Mr. Vandemark claims to have, advanced. Beulah E. Hutchins produced no evidence to indicate other sources of funds or a reasonable explanation as to how the decedent could live approximately nine months on $192.

On all of the evidence Byron C. Vandemark has sustained the burden of establishing the payment of the check in accordance with his agreement with the deceased.

Cite This Page — Counsel Stack

Bluebook (online)

30 Misc. 2d 471, 219 N.Y.S.2d 284, 1961 N.Y. Misc. LEXIS 2487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-vandemark-nysurct-1961.