Clarke, J.:
This is an appeal by the administratrix from a- decree of the ■ Surrogate’s Court overruling in part the report of a referee, upon an accounting made by Lora 0. Schroeder, as administratrix of Edwin A. Schroeder, deceased.
[206]*206Edwin A: Schroeder died October 14, 1902,' leaving; Ins widow, Lora C. Schroeder;. who was appointed administratrix. Prior to his marriage to'Lora O-Schroeder,'he had been divorced from his former wife, Oarrie B. Schroeder, and'had one child by the former marriage, an- infant, Philis L. Schroeder. Her mother, Carrie B. - Schroeder, had been appointed guardian of' this infant. In April, 1904, Carrie B. Schroeder as .such guardian applied for "a compulsory accounting and an order for an accounting was'made.' Theadminis-tratrix then petitioned for a voluntary accounting, and xafter due service filed her account which is the subject of this appeal. w
. The account was 'referred by the surrogate under tlie provisions of sriction 2546 of the Code of Civil Procedure to a referee to ' examine said, account and objections, and to hear and determine all questions arising upon the settlement of said, account which the 1 surrogate'had power to determine. The referee afterwards filed his report, and exceptions thereto were taken and argued by both parties before the surrogate, who overruled the report of the referee in some particulars and sustained it in others.
■ Considering the points raised upon this appeal: I. It seems that at the time of his death Edwin A. Schroeder was living with the appellant in a rented ■'house at. No. 10 Lexington avénue. After the' decedent’s death his widow continued to live in this house for about seven months. ' Bespondent objected to the account before the referee upon the ground that the administratrix failed -to charge ■ herself with the.rent of this house for this period. The-referee found that the appellant did not assume the lease by continuing to remain in the house after her -husband’s death; that,' therefore, she could not be charged with rent thereof .;' that she could not be charged for use and occupation of the pre'mises because the evidence was that the- said use and occupation was of no value. The learned" surrogate reversed this determination of .the referee and held that the appellant was chargeable with the reasonable value of the use and occupation of the premises;; that said rise and occupation was of considerable value and fixed the same at the rental value specified > in the lease,, viz., $1,408.29.' The' appellant' had already paid' .the rent for the-time which she remained in the house after her hrisband’s. death and had-charged this against the estate in her' account, and the same had been allowed by the referee. The evidence upon [207]*207which the referee based his finding was the testimony of appellant and that of her attorney, Walter S. Logan.' Appellant testified that she put the house in the hands of two or three real estate agents and tried to rent it, but was unable to do so for the reason that the furnace which heated it was defective; that she tried to rent it furnished for $4,000 per annum, because that was the amount that her husband had thought it ought to bring; that she' also tried to*let it unfurnished, as did also the owner of the house, but to no avail; that she did not want to remain in the' house and would have left at, once if she could have obtained a tenant; that she received an offer to rent the house if she would put in a different furnace.
Mr. Logan testified that he attempted to' surrender the léase or relet the premises, but that it could not be done; that Mrs. Schroeder desired to leave because it was too expensive to retain, and that she merely stayed there so as to help relet the premises if possible.
It seems to me that this evidence was sufficient to justify the ref- ' eree’s finding that the appellant should not be charged withjent for the premises for the time she remained in them after her husband’s death. The estate being chargeable with the unexpired lease, she was justified in remaining, iii the house to be oh hand to show it to prospective tenants and-try to rent it if possible. The evidence shows that shé used reasonable efforts to rent the house and there is no evidence to the contrary. From all' that appears. $4,000 was not an unreasonable rental to ask for the housé furnished, and there is evidence that she tried to rent it for a less amount unfurnished. By remaining in the house she was not subjecting the estate to any additional burden ; the rent would have had" to have been paid just' the same if she had moved out. It cannot be said that had she moved out the house could have been rented, to some one else, for the evidence is all.to the effect that it could not have been so rented.
II. The administratrix claims that the furniture and silverware which was left by her husband in the house at 10 Lexington avenue was given to her by him during his lifetime. Both the referee and. the surrogate held that there was not sufficient evidence to support this claim and charged the administratrix with the value of said furniture and silverware. - •
To establish the gift to the administratrix, Mr. Logan testified that shortly after the marriage Mr. Schroeder called upon him at [208]*208■ his office and told him that he had given his wife all the furniture and “ stuff ” in the house at %0 Lexington avenue. Mrs. Bailey, an aunt of the administratrix, testified that she heard the deceased tell the administratrix that he had given her everything in the house as a wedding present. She also testified that he allowed his wife to arrange everything in the house as she liked.
Mrs. Okie, the mother of the first husband of the administratrix, which husband the administratrix had divorced, testified that in the course of a conversation' with Edwin A. Schroeder, in which the furniture, tapestry, decorations, etc., were discussed by him, .he .remarked that “he'was glad that Lora (the administratrix) could appreciate all these beautiful things which he had given her.”
Mary E. Wilson, a nurse employed by the administratrix, testified that she heard Mr. Schroeder remark several times that he had given his wife everything in the house as a wedding present.
Mrs. Knapp, a sister of the administratrix, testified that she had a conversation "with Edwin A. Schroeder after his marriage to the administratrix in which he “ referred to his marriage as being very happy, and that my sister ought to be happy, as he had given "her all these things contained in the house at Ko. 10 Lexington avenue in the city of Kew York, including the furniture, bric-a-brac, silverware and dishes, in fact everything contained in the house, and had made her a wedding present of all these things.”
On behalf of the contestant William A. II. Stafford, the brother-in-law of the deceased, testified that after the death of Edwin A. Schroeder he saw the administratrix at her home and “ she said, ‘’how is this estate going to be divided ? ’ and I said that as he died intestate, I presume it will be divided .according to law; in your case you will get one-third- and Philis will get two-thirds. . ‘ How,’ she said, ‘ that’s pretty hard on account of the furniture in this house ;"***' there are certain articles which I had expressed a great desire to have and which 1 know he intended I should have, and if it becomes necessary to sell the contents of the house, I prob- . ably would not get the articles to which I have become attached.’ * * * I said that unless he made you a deed of gift bequeathing these to you, you are not entitled to anything but the proceeds which will accrue from a sale of the contents of the building.”
The administratrix denies that the conversation was as related by [209]*209Stafford. She testified : “ I had several conversations with Mr. W. A. H. Stafford shortly after Mr. Schfoeder’s death: I did not ask him what would become of the furniture in the house. Mo such conversation took place in which he said that it’would have to be sold, . and I replied, ‘ That seems terrible; some of these things I know Med intended me to have.’ May I be allowed to state the conversation ? Mothing of that sort took place; nothing like that at all. It was something like it, but not that. I know it absolutely.” ' She failed, however, to state what this conversation was. Her only qther testimony on this point was, “ I had so many conversations with Mr. Stafford ; he called on me a great many times. I know I had a conversation with him, and he wanted me to put my interests in the hands of Mr. Weiss, the lawyer, and they .were all very much excited because I did, hot do that, and I liqvehad conversations with him about my affairs, hut never about the furniture of the house. He suggested those things many times to me, but I simply did not feel that there was any reason why I should discuss these things with him, and I never did. He is very antagonistic, and it is very likely he said these things. Tes, very likely he made that statement or that he might make any statement at all, he is very antagonistic.”
The administratrix also testified that.before her husband died she gave certain of the things away that she did not want, and -that she sent some of the things away to be sold and received the proceeds therefrom and .spent the same. But upon cross-examination she was unable to state what things she'sent away to be sold, where she sent them or how much she received from the sale of them. It seems to me that this evidence is not sufficient to establish a valid gift inter vivos to the administratrix. All of the witnesses who testified in her behalf, with the possible exception of Mrs. Okie, the mother of her first husband, were interested witnesses. . One was her attorney who represented her in this case, another her aunt, a third a maid who was in her employ at the time she. testified, and a fourth her own sister. Appellant contends that Mrs. Okie cannot be consid- • ered an interested witness, since appellant had divorced'her son. If ’t had not been for that fact Mrs. Okie would have fallen within that category, and the fact that Mi’s. Okie had seen, fit to visit the appellant and her second husband in their home Would tend to show that she had not lost that interest.
[210]*210The law is well established in. this' State that one who attempts to establish title through ■ a gift inter vivos must do so by clear and conclusive evidence, As was said in Matter of O’ Connell (33 App. Div. 483): “ He who attempts to establish title to property through a gift inter vivos as against the estate of a decedent takes upon himself' a .heavy burden which he must support by evidence of great probative force; which clearly establishes every element of a valid gift, viz., that the decedent intended to divest himself of the title in favor of the donee and accompanied Ins intent, by a delivery of the subject-matter of the gift.” .-
The language of Judge Vann in the case of Rosseau v. Rouss (180 N. Y. 116) is applicable here. He says : ‘‘ Thus the evidence relied upon to establish the contract'is, first, the testimony of the mother who tried .to swear $100,000 into the pocket of her own child, and second, the testimony of witnesses who swear to the admissions of a dead man. The former is dangerous; the latter is weak, and neither should be acted upon without great caution. We have repeatedly held that such a contract must not only be certain and definite and founded upon an adequate consideration, but. also that it must be established by the clearest and most convincing evidence.” The evidence offered to establish the gift contended for vvas not of that clear and uncontradicted nature which the law requires. The referee,, who had an opportunity to' observe-the demeanor of. the witnesses, came to the same conclusion, and aside from there being no reason why his determination should be set aside, there is every reason why. it should be upheld. It is true, as contended by the appellant, that in view of the. fact that she and the decedent were living together as husband and wife, it would have been uniisual that this property should havebeen removed into the exclusive - possession of the appellant, and for that reason an entire change of possession would not be a necessary part of the proof of delivery, but aside from that, question I do not think that toe intention, to make the gift has been sufficiently established..
The surrogate was: right in charging the appellant with the furniture,, silverware and other .effects in the house át No. 10 Lexington. avenue, except ás to such articles as are comprised Within, the exemptions set forth in section 2ÍT13 of. the. Code of Civil Procedure.
[211]*211III. Appellant contends that' the surrogate erred in holding that the charge of the attorney of $3,000 for legal services should b f cut down to $2,000 and that the remaining $1,000 paid should be charged against the administratrix. It seems that while the attorney retained the sum of $3,000 collected from the corporation of Schroeder & Argnimbau as payment for legal services rendered by him to the estate, it appears that he afterwards gave $1,000 of this amount to the administratrix. The attorney claims that this transaction was a personal Id an by him to the administratrix. I do not think that the discretion of the surrogate in fixing the proper amount of the attorney’s fees for the services rendered should be' disturbed and he is, therefore, sustained.
IV. Appellant contends that the surrogate erred in holding that the sum of $1,172.40, which 'was expended for legal services arid disbursements in defending and' appealing a .suit brought against the administratrix for rent under a lease of an apartment formerly occupied by her which had not expired when she moved out and went to live with Mr. Schroeder, were chargeable against her and not a proper expenditure on behalf of the estate.
Appellant bases this contention bn her-further contention-that at the time he married her Mr. Schroeder promised to pay the balance of the rent which should accrue under the lease of her apartment, which she was then leaving, and this being so it was the duty of the estate to defend this action. The only proof offered to show that the deceased ever promised to pay this rent was the testimony of the attorney, who defended this suit and whose bill for these services formed a part of the charge in question, to the effect that Schroeder had told him that he had agreed to do so. This is simply the statement of a third party as to an admission by decedent and this party is the One most interested in having .this claim of the appellant upheld. Upon this question of fact the surrogate should be sustained.
V. Appellant contends that the surrogate erred in disallowing her certain small items of expenditure. The items disallowed are set- forth in vouchers 21, 63, 66, 72, 73, and 15, 16, 24, 32, 34, 3.7, 41, 46, 47, 52, 53, 58. Voucher 21 was a bill rendered by Hass' Bros., with whom the executrix had an account in her husband’s lifetime, which her husband permitted her to carry in his name and which lie was in the habit of paying, for clothing. Most of this was ordered [212]*212in the husband’s lifetime and what was not consisted of mourning ' garments for the widow. This item ($222)'should have been allowed.
Voucher 63 was for' flowers purchased mostly before the husband’s death and those purchased afterwards \yere, those which the widow placed upon the grave immediately after the interment. This latter item (twenty-two. dollars) was properly disallowed; the balance should have been allowed. ' . ..
■ Voucher 66 (48) was a bill for. electric lighting in the house at 10 Lexington avenue after the death of Mr. Schroeder. • This item was properly disallowed (sixteen dollars arid eighty-five cents).
Voucher 72 was a bill for coal purchased for the house 10 Lexington avenue after the husband’-s" death. So much of this as was. for fuel for sixty days was improperly disallowed, and appellant _ should be credited with it upon the .award made her as widow, 'under section 2713 of the Code of Civil Procedure.
• Voucher 73 was a bill for an ornament ordered at Tiffany’s on July .16, 1901, in the name, of Mrs. C. L. Okie, No, 2 West Ninety-fourth street, and which remained in their delivery department awaiting the call of this appellant until January 3, 1903j nearly three months.after the intestáte’s death, when she .directed them to send the bill to her attorney. This ornament was ordered by the-appellant before her marriage, and there is no evidence to show that the deceased ever knew.of the fact or that he intended to pay for it.', The item was properly disallowed ($100). •
Vouchers 15, 16, 24, 32,.37, 41, 46, 47, 52, 53 and 58 were bills for groceries and other household necessities, nearly all of which were ordered before the death of. the husband. These should all have been allowed. ' .
■ VI. The estate held a majority of the common stock of the corporation of Schroeder & Arguimbau, and this common stock controlled the election of a majority of' the directors of the corporation. The appellant contends that the surrogate should not, have, required a distribution of this stock, It was agreed by'all parties that it was riot best to sell the stock in this corporation, so that the only question is whether or not the stock should have been distributed or left in the hands of the administratrix. It appears that by the distribution' of this stock the control of the corporation has passed into the hands, of .the uncles and mother of the infant Philis Schroeder,: [213]*213' who inherited two-thirds of the stock left by her father. These , persons are friendly to her interests, and there is nothing to show that they are incapable of properly managing the corporation. It seems to me that in view of this fact, and also of the fact that the administratrix has used her position to further her own private ends, the surrogate was right in ordering a distribution. I think, however, that the surrogate should have made provision for the payment of commissions, expenses and all necessary future disbursements in connection with the estate, and to that end should not have ordered that the balance of cash in the hands of the administratrix be distributed until the final winding up of the estate.
VII. Appellant contends that the surrogate erred in sending the case back to the referee to. permit further explanation by the administratrix with respect to the furniture in the house at 10 Lexington avenue, and the other-articles therein with regard to the value thereof, and to determine the value of said property; also for the purpose of reporting as to the proper allowance to be made the widow under section 2713 of the Code, and as to the amounts which the administratrix had received from Arguimbau by way of weekly allowances.
It seems to me that this proceeding on the part of the surrogate was right and proper, and entirely within his authority. He had authority to send the account to the referee in the first place, and he certainly has authority to request of him a further and fuller report. The point is not well.taken.
Till. The remaining question upon this appeal arises upon the contention of the administratrix that the surrogate erred in charging her with certain moneys which she received from one Frank M. Arguimbau. At the time of his death, Edwin A. Schroeder held a majority of the common stock, which represented a controlling interest in the corporation of Schroder & Arguimbau Company, of which he was. president. At that time the corporation was very much involved. Its paper then outstanding amounted to $295,000. More than $200,000 of the company’s asset’s-were invested in Florida lands, upon which it was impossible" to realize. It owed E". A. Schroeder’s estate more than $27,000. Before Schroeder’s death he made an agreement with Arguimbau, who owned the next largest interest in the company, and who was the treasurer thereof, that upon [214]*214'the death of either, of them, an inventory should be immediately taken, and upon the completion thereof, the survivor should have the option to buy out the interest of the decedent’s estate in the corporation at the inventory value, and that if such survivor failed to do so within twenty days the corporation should be dissolved.
It seems that Schroeder held sixty per cent of the common stock in this corporation and Arguimbau forty, and that by the company’s by-laws a majority of the common stock could elect three out of four directors. Schfoeder’s stock, of course, went to the administratrix upon his death, and through it she held the power of control of the corporation. . .
Shortly after Schroeder died Arguimbau began making payments of $100 a week to the administratrix out of his own pocket. These payments he testified he first made to her as loans, because, he “ thought it would-be to the best advantage of the corporation to do so.”, After, a few weeks, and after consultation with the corporation’s attorney and another officer,of the corporation, Arguimbau determined to treat these former and all subsequent weekly payments as gifts. He testified: “ The reason why I came to that conclusion to change them from loans to gifts was, well, Mrs. Schroeder had nothing to live on at the time, and I did not want to p'ut Mrs. Schroeder in a positionpf being obliged to take any steps to create any internal trouble in the corporation.” At about the time that this decision was made, the attorney of the administratrix wrote a letter .to Arguimbau’s attorney in answer to one from him, in which he had requested that the administratrix delay taking steps to wind up the corporation, in. which, on behalf of the administratrix, he complained of certain increases in salaries which had been voted to Arguimbau and another officer of the corporation since the death of Schroeder, and wound up by saying: “ If she cannot as administratrix, obtain enough of the money due from the company to Mr. Schroeder to pay the estate’s pressing bills — many of which* are embarrassing to her personally — and enough money besides on her personal account to enable her to start upon a scale of living within her means, she would naturally feel bound, both for her own protection arid the protection of the estate, to settle up the estate’s affairs at the earliest possible moment so that she would come’into possession of the part of it that belongs to her in time to serve in some measure [215]*215her present needs.” After this letter Arguimbau continued to pay $100 weekly to the administratrix out of his own account, but the treasurer, Stafford, turned over his entire salary received from the Corporation to Arguimbau to be used in making park of. these pay- . mente. This money the latter placed in his private account. Later the salary of Arguimbau as president of the corporation was reduced from $15,000 to $8,600 and thereupon he reduced thé amount of the weekly remittance to the administratrix to $50. There can be no doubt but that these payments made by Arguimbau to the administratrix were for the purpose of inducing her to refrain from exercising her right to demand a dissolution of the corporation, and a payment of the corporation’s indebtedness to the estate. It is also conceded that to refrain from pressing these matters was greatly to the advantage of the corporation and it is claimed, consequently, of the estate, which owned sixty per cent of the stock. The question presented then is simply whether or not an administratrix shall be ' charged with moneys which she has received from a source independent of the decedent’s estate for refraining from doing an act in her capacity as administratrix which it would have been detrimental • , to the estate to have done.
The learned referee found that these moneys were voluntary gifts or loans made by Mr. Arguimbau to Mrs. Schroeder, and that they were personal transactions, and were not- induced by threats, compulsion, intimidation, or improper solicitation of the administratrix or any one acting in her behalf, and- overruled thé objection of the contestants. The learned surrogate reached the conclusion that these sums of money, paid by the officers of the corporation to the administratrix, were “ received by her on an express or implied understanding or contract that she would refrain from using the voting power of the stock in that corporation in her hands as administratrix, to their prejudice, and that she would also delay the enforcement of the claim of the estate against the corporation. No .part of these moneys was due or payable to her as an individual. She obtained them all because she' was administratrix of the estate of her decedent and because of her control of the assets of such • estate. It follows that all of the persons interested in the estate are entitled to share in those sums of money and that she should be charged with them as assets.”
[216]*216The administratrix occupied a fiduciary relation to the persons ' interested in the trust estate.' The rule in regard to trustees seems clear. “ They cannot use the trust property nor their relation to it for their own personal advantage. All the power and influence • which the possession of the trust fund gives, must be used for the advantage and profit of the beneficial owners, and not for ■ the personal gain and emolument of the trustee.”' (Perry Trusts, § 427.)
In McClure v. Law (161 N. Y. 78), in an action to recover from a former president and director of the Life Union a sum claimed as. profits made by the defendant out of his trust relationship with the company, an agreement had been made by which the management and control of the corporation had been agreed to. be turned' over for a stated consideration accompanied by the resignation from time to time of one or more directors and the election of others in their places. The agreement was carried out and the defendant received $3,000. The Appellate Division treated the transaction as a bribe, and reached the conclusion that the money did not belong to the corporation. The Oourt of Appeals said, however, “ as an officer he had the right to resign, but the money’was not paid to him for his resignation. It was paid over upon condition that he procure Levy and his friends to be electéd directors and given the control and management, together with the property and effects of the con poration. The election of directors and the transfer of the management and property of the corporation were official acts, and whatever money he received from such official acts were moneys derived by virtue of his office for which we think he should account. In Sugden v. Crossland (3 Sm. & Gif. 192) IiorsefieTd wáá a trustee under a will. Crossland paid him seventy-five pounds to withdraw from the trust and have Crossland appointed in his place. It was held that the seventy-five pounds belonged to the estate.” The court cited the passage from Perry on Trusts (supra) with approval.
I can see no difference in principle between the receipt of money by a director to influence his resignation and the election of another in his place, and the réceipt of money by an administratrix to influence and control her actions as administratrix in certain particulars in relation to the estate. It is immaterial whether the action. or non-action was for "the benefit of the estate. The money was received because of the relation of the recipient to the estate. It [217]*217was personal profit made thereby, and if the director was accountable in the one instance, the administratrix is in the other.
The rule is clearly stated by Judge It Rapallo in Fulton v. Whitney (66 N. Y. 555): “ No actual fraud on the part of,the defendants is alleged or found, nor is it necessary .that there should be. The object of the rule which precludes trustees from dealing for their own benefit in matters to which their trust relates, is to prevent secret frauds by removing all inducement to attempt them.”
In the case of Carpenter v. Taylor (164 N. Y. 171) the plaintiff was a general assignee for the benefit of creditors of the defendant, and made an agreement with the defendant that in addition to his legal fees and commissions he should have fifteen per cent on all sums of surplus after payment of the debts of the assignor up to $5,000, and ten per cent on anything remaining as surplus. There was a surplus and he demanded payment in accordance with his agreement. In reversing; the Appellate Division, the Court of Appeals said : “ A. trustee who holds the title to property for the benefit of others cannot use his position for his personal advantage. He cannot make profit,for himself in the execution of the trust. He cannot ordinarily deal with the beneficiaries or parties interested in the estate so as to acquire the ownership of the trust property.”
This administratrix held the title to these shares of stock, and by virtue of such title she received this benefit to herself in the execution of the trust. The general rule is of the greatest importance. Full effect should be given to it by the courts. It is most salutary. Persons holding fiduciary positions in. the many trust relations which modern society has produced, should be held to the strictest accountability. The community should be given to understand that the courts of this State will hold trustees to the .highest standard of straight conduct, and will not permit them to make by virtue of their trusts a private and personal profit beyond the compensation allowed by law.
In the case at bar a year and a half went by after' decedent’s death, and it was not until the contestant began proceedings for a compulsory accounting that the voluntary proceeding was commenced by the administratrix. All this time the two-thirds of the stock of this corporation which belonged to the infant' was held undistributed in the hands of the administratrix, and she still [218]*218opposes distribution thereof. Without deciding whether this course has been of ad vantage" to the estate or not, is it not too clear for argument that the fact that she was, through ■ the possession of this stock, receiving these' large weekly payments, a temptation to take the course she did ? Does it not come squarely within the principle governing the conduct of trustees ?
There is no analogy between the case at bar and Matter of Schaefer (65 App. Div. 378). In that case the éxecutors who were asked to account for salary and extra- compensation received by them from the corporation, were officers of that corporation and had been so long prior to testator’s death; and, as such officers, both before and after said death had received the payments for their services to the corporation. It was under those circumstances that this court held that the moneys were paid to them as officers of the corporation individually, in the shape of compensation for services they had rendered to the corporation, and not as property to which the estate was entitled: It seems to me, therefore, that the learned surrogate properly held the administratrix accountable .for these sums.
The decree of the surrogate should, therefore, be modified, as indicated in this opinion, and as modified affirmed, with costs to all parties payable out of the estate.
•O’Brien, P. J., and McLaughlin, J., concurred; Ingraham and Houghton, JJ., dissented in part. ■