The Surrog-ate.
In passing upon the question raised by the objections to the account in this matter I shall consider them seriatem.
1. As to the ownership of the opera box, the question is whether the facts proved constitute a gift to Mrs. Stevens inter vivas.
The counsel for Mrs. Stevens cited several authorities upon his brief showing that a chose in action may be assigned by paroi, to sustain the claim of Mrs. Stevens to the-opera box in question ; but in each of the cases referred to, as I understand them, there was an actual delivery of the evidence of the indebtedness, and [277]*277it seems to me, that if Mrs. Stevens is entitled to hold the opera box in question, as her property, it must be because of the gift by her husband inter vivas. To constitute such a gift, there must be an expression of intention to make a gift, and actual delivery of the subject thereof to the donee. (Bedell v. Carll, 33 N. Y., 581; Shuttlewortlh v. Winter, 55 Id., 624; Irish v. Nutting, 47 Barb., 370.)
In the last case cited, Judge Bacon pat page 388) says : “ An absolute gift divests the donor’s title, and requires a renunciation on his part, and the acquisition on the part of the donee, of all title to, and interest in, the subject of the gift.” The evidence in this case shows that the title to the box in question consisted of four certificates taken, and remaining in the name of Mr. Stevens, and that the tickets were the only evidence of the right to occupy, which were delivered to Mrs. Stevens. The expression of an intention to give the box to Mrs. Stevens did not consummate the gift, but it was necessary either to deliver the subject of the gift, or some evidence of title. It is quite evident that if Mrs. Stevens, on the faith of the four tickets and the allegation of ownership, had transferred the box in question to a third party, Mr. Stevens might have taken proceedings to eject the purchaser and to resume his authority over it. It seems to me equally clear that Mr. Stevens in stating that the box was his wife’s, in view of his retention of the evidence of the title, did not show any intention to be divested of his title to, or control over it.
I do not attach much significance to the fact that Mr. Stevens inventoried the box, as his property, because he was in the habit of including in his inventory money which had been advanced to his children, and his wife’s jewels; nor do I think that Mr. Stevens’ payment of the [278]*278assessment upon the box, and charging it to the estate, affects the question of title, as that question must be determined upon well settled principles of law, nor is the fact in my opinion at all controlling that the executors and executrix included the box in the inventory
It is not my province to determine as to the propriety of the claim made by the executors, either as to the ownership of the box, or the charge to Mrs. Stevens of the rental. These are questions of propriety which address themselves with more or less effect to the parties interested in the controversy.
The transaction, as it seems to me, lacks the essential ingredients of a gift inter vivas; and therefore I must hold that the Box is the property of the estate, and properly inserted in the account; and that being so, Mrs. Stevens only had a license to occupy by permission of the testator and the authority uf the tickets, which ceased on testator’s death; and that Mrs. Stevens is chargeable with the use of it from that period.
2. The question of Mrs. Stevens’ liability for the balance of the sum furnished to her by Mr. Stevens, is one, it seems to me, depending on the intention of Mr. Stevens at the time the advance was made, and to be derived from all the circumstances of the case.
It is quite clear that su far as Mr. Stevens’ liability to Messrs. Duncan, Sherman & Company is concerned, it is dependant upon the amount of the circulating notes actually used ; yet it is equally clear that that liability could be fixed by the use of the notes, whether in ac-. cordance with, or in violation of, the intention of Mr. Stevens, respecting their use, and that the subsequent collection of the amount after his death, by Mrs. Stevens, as between the estate, and Messrs. Duncan, Sherman & Co., made the estate liable for the full amoiuit. But the terms of the note given by Mr. Stevens, and the [279]*279liabilicy which subsequently attached, do not throw much light upon the intention of the parties as between themselves.
The fact that these circulating notes were procured by Mr. Stevens, and delivered to his wife, for the purpose of defraying the traveling and personal expenses of Mrs. Stevens and her daughter in Europe, and for the purpose of investing in household furniture and ornaments, indicates to any mind no intention on the part of Mr. Stevens to give up all control over that amount of money, in the event that it should not be used for the purposes contemplated. Some portion of it was to be devoted to the expenses of his daughter, and it cannot be supposed that he intended to part with all interest in it, and leave Mrs. Stevens at liberty to decline to defray the expenses of her daughter, or to raise other moneys on his credit to pay the expenses of such journey; nor can it be doubted that if Mrs. Stevens should have used the money in question in purchasing articles of household furniture, such furniture Avould have been the property of Mr. Stevens.
Suppose that Mrs. Stevens by some accident failed to go to Europe altogether, I think it cannot be reasonably pretended that she could still, as against her husband, claim to be a donee of these circulating notes. The circumstances of the case do not show an intention on the part of Mr. Stevens to part with all right to or authority over the money’. It was delivered for the purpose of being used to defray expenses, &c., for which Mr. Stevens himself was properly1- chargeable, and its delivery for that purpose, to my mind, evinces no determination to divest himself of all control or authority over it; and if Mrs. Stevens had died possessed of any of these notes, or their proceeds, there would have been no necessity for instituting proceedings in respect to [280]*280them as belonging to her estate, but they might have been taken by Mr. Stevens as his property.
That portion of the notes used by Mrs. Stevens according to the purpose of their delivery, while abroad, and on her return, cannot be reasonably claimed by the estate, but. the £1,800—not used until July 11th, 1872, and then collected by her, equal to $10,241.54—it seems to me, belongs to the estate, and should be charged to Mrs. Stevens in the account.
3. From the testimony, I think that the accounts— J. Monroe & Co., $1,408.68, $1,316.79, H. Clews & Co. $62.20—are proper charges against the estate, and are not chargeable to Mrs. Stevens individually, although the debts of the respective creditors appear to be subsequent to the decease of Mr. Stevens; yet the positive testimony of Mrs. Stevens, that they were incurred prior to his decease, sufficiently establishes the liability of the estate.
4. The charges for repairs upon the Apartment House appear to have been subsequent to the 26th day of April, 1873, and by the terms of the agreement between the trustees and the executors, it is provided that such trustees should be responsible for such repairs since April 26th, 1873.
Under this agreement I. think there can be no doubt of the liability of the Trustees for the repairs mentioned, notwithstanding they may have been ordered prior to the 26th day of April, 1873. Indeed the agreement itself seems to leave'no reasonable doubt of that construction. The language is : “ Mrs. Stevens’ Trustees to be responsible as Trustees, for repairs since April 27th, 1873,” evidently referring to repairs made since that period, not to such as may have been ordered since that time. These charges are therefore properly made against Mrs. Stevens.
[281]*2815. The question as to the liability of Mrs. Stevens for the value of the furniture of the Apartment House, and the mode of ascertaining that value, is a question of embarrassment. The agreement above referred to, in its fourth paragraph provides as follows:—u Mrs. Stevens shall allow at cost for the furniture of the Apartment House, ordered in and after April, 1873,—and for that previously ordered at a valuation, and she shall take it.”
It appears by evidence undisputed,that the furniture purchased after April 1st, 1873, cost $2,802.80, but the dispute arises in respect of the value of the furniture of the house prior to that time.
On the argument, I was inclined to the opinion that the agreement contemplated an appraisal by some persons to be selected by the respective parties; but as that seems not to have been done, the question must be determined upon the valuation which was made, and the only difference in the estimate seems to arise from the principle upon which the respective appraisers valued the property. Messrs. Taylor and Cranston appraised it at 10 per cent, less than cost, upon the proof that it was judiciously purchased at a then recent date, and upon the assumption that it was to continue in the house, as a part of the establishment, and their estimate makes the amount $7,348.56, while Mr. Colton testified that his estimate of $2,348.50 was based upon its value, removed from the house, and sold in the market as second hand-furniture.
It is quite clear that the purchase by Mrs. Stevens, and the sale by the estate of the furniture, in question, was upon the assumption that the furniture was to remain a part of the establishment, and that its estimate of value should be based upon that theory, and it seems to me that taking the circumstances and situation of [282]*282the parties into consideration, it would be a very unjust estimate to base its value upon a probable sale disconnected with the establishment, as second-hand furniture. The real question is, what was the value of the property to the estate as forming part of the establishment, or what was the value to Mrs. Stevens under the same circumstances.
As there seems to be no practical mode of correcting the different valuations, I am constrained to regard that made by Messrs. Taylor & Cranston as the true valuation, and hold that the charge of $10,967.88 on account of such furniture, is properly made against Mrs. Stevens.
6. The charge of $500 for rent of office in the Apartment House, 1 think under the evidence too much, as the same office was used for the benefit of the Apartment House, and that $250 would be a reasonable charge for that purpose, which I think should be allowed.
7. The charge of $450 claimed for traveling expenses of Mrs. Stevens, under her evidence should be allowed at that sum.
8. The amount paid J. B. Brewster & Co. of $1,925 for damages done to their carriages by the blowing out of a plug of the steam pipes belonging to the house, and which was paid by Mrs. Stevens, or rather retained by Messrs. Brewster, they refusing to pay because of the alleged breach of their lease with Mr. Stevens, should, I think, upon principles of equity be allowed to Mrs. Stevens.
There was, uoubtless, a liability on the part of the Stevens’ estate under their lease, for the damages in, question ; and as by agreement of October, 1873, Mrs. Stevens was to be allowed rent from May 1st, 1873, she was deprived of that rent by reason of the breach of the lease, on which the estate was liable, it seems to me that [283]*283that liability having been answered by Mrs. Stevens, by reduction of the rent, due to her by virtue of the agreement of October, she has paid so much of the estate’s debt, and should be credited therefor; otherwise it would, be so much diminution of her trust legacy, which the estate had undertaken to secure by the transfer of the Apartment House in question, and the rent thereof from May 1st.
9. The various charges to Mrs. Stevens, for supplies, repairs, &c., of the New York and Newport residences according to the testimony of Mrs. Stevens, were incurred before the death of Mr. Stevens, and could have been enforced against the estate, by the respective creditors, notwithstanding the bills were rendered at some time after the decease of Mr. Stevens. Yet the executors having paid them, and most of them having been incurred either before Mr. Stevens’ death, or before the return of Mrs. Stevens to this country, I am of opinion that they are a proper charge against the estate, and should not be charged to Mrs. Stevens.
10. As to the charges in exhibit E, against Mrs. Stevens, for insurances of the residence at Newport, and of No. 244 Fifth Avenue, I am embarrassed somewhat by the allegation in the brief for the executors, that no exceptions to the account in that respect have been filed, while among the papers submitted to me, I find further exceptions under date of April 14th, 1875, by Mrs. Stevens, embracing these matters of insurance, and I must assume that they are properly before me for consideration, and as it appears that these charges for insurance, were upon policies issued upon the property in which Mrs. Stevens only has a life estate, and were incurred largely for the benefit of the ultimate estate, and were paid without Mrs. Stevens’ authority, or intervention, I am of the opinion that the charges in that re[284]*284spect should be disallowed, and the expenses sustained by the executors.
11. I have now reached, the final and more embarrassing questions involved in this accounting, and that relates to the $20,000 note of Mr. Melcher, and his obligation of $51,347.87 dated September 5th, 1868, and the effect of Mr. Stevens’will, and the alleged charge of said claims to Mrs. Melcher."
As the testimony of Mr. Arnold throws considerable light upon the intent of the testator in respect to these claims by charge to Mrs. Melcher in the following language, “also the further sum of $86,000”—the admissibility of this testimony is disputed by counsel for the executors, and I must therefore consider that question first.
On a careful examination of the authorities upon the question, I am of the opinion that the testimony given by the witness Arnold who drew the will, in respect to a statement of the testator, as to the purpose of the provision charging $86,000 to Mrs. Melcher, is not obnoxious to the rule prohibiting the giving of paroi evidence, to explain, modify, or contradict, written instruments, but is admissible as explanatory of the intent of testator, and as giving point, and meaning- to the provisions of the will, which its terms alone do not make apparent.
In ex parte Hornby (2 Bradf., 420,) it was held that it was competent to give evidence of the testator’s declaration at the time of making the will, where a will is written, and there is no one to answer the precise description of the instrument.
In that case, the legacy was given to the testator’s nephew, James Hornby, son of his brother Frederick; but it appeared that his brother Frederick had no son James, but that his brother James had a son named [285]*285Frederick, and paroi evidence was given to show these facts, and was held admissible, so as to give the legacy to Frederick the son of James.
The Surrogate, in that case, uses this language: “ It is undoubted that all extrinsic facts are admissible in aid of the exposition of a will, and it is competent by means of extrinsic evidence to place the court in the situation of the testator, so as to facilitate, answer and ascertain his intentions.”
In Williams v. Craig (8 Cow., 246), it was held that evidence to show the intention of the testatrix is not objectionable on the ground of varying, or contradicting, any of the provisions of the will.
Such evidence goes to explain, independent of the will, the state of facts, of which the same is silent. In ' the same case on appeal (4 Wend., 443,) where a new trial was granted, chief Justice Savage, (at page 451,) states the principle as follows: “ Is this a legacy ? It so what is the amount ? There is not a word in the will explaining it. If therefore we are ever to understand it, we must seek its explanation from paroi testimony. It cannot be received to give a construction to the language of a will, but to prove circumstances from which the court may draw the inference, or presumption.”
In Hine v. Hine (39 Barb., 507,) paroi testimony was held admissible to show that a subsequent advance was intended to apply upon a specific legacy. Mr. Justice Allen, (at page 512,) says : “ Parol proof is competent not to define the terms- of the will, but to- establish the acts and intent of the testator, either in behalf of the plaintiffs, in rebuttal of the presumption of satisfaction, or of the defendants, in reply to the same evidence, in support of the alleged satisfaction.”
I entertain no doubt that it is my duty, as well as province, to pass upon the question on this accounting, [286]*286of the liability of Mr. Melcher to the estate ; indeed, as the indebtedness is alleged against him, he being one of the executors, it seems to me the question of his liability must be passed upon, before the accounts can be settled. (See Merchant v. Merchant, 2 Bradf., 432; Gardner v. Gardner, 7 Paige, 112.)
The authorities cited by the learned counsel for Mrs-Stevens, to this point, refer exclusively to the well settled doctrine, that the Surrogate will not assume the power to pass upon a disputed claim against the estate, upon the final settlement, and are not applicable to a case like this.
The effect of the clause of the will referred to, the testimony of Mr. Arnold, and the inventory of Mr. Stevens, upon the said liabilities of Mr. Melcher, are full of embarrassment. Several authorides are cited by the learned counsel for the executors, to show that the claims were satisfied, but these are all cases where there is a legacy to a debtor, and the effect of such liability of the legatee is adjudged. Such are Williams v. Craig (8 Cow., 246), Tillottson v. Race (22 N. Y., 127), Hine v. Hine (39 Barb., 509).
In Clark v. Bogardus (2 Edw. Ch., 387), it was held that the gift of a legacy to a debtor will not of itself amount to a release of the debt, provided the testator’s intention is left doubtful; there must be evidence clearly expressive of the intention, but it may be got at, aliunde. At page 390, the Vice Chancellor uses this language : “ There is another class of cases where chancery has relieved the obligor from the payment of his bond, upon clear evidence of the acts and declarations of a deceased obligee, and where they amount to a relinquishment of the debt, or to the want of intention to exact payment,” citing, Burn v. Godfrey, 4 Vesey, 6; Eden v. Smith, 5 Id., 350. But an examination of these au[287]*287thorities does not fully sustain the principle enunciated, for they are cases of legacies directly to debtors, and to the same effect substantially, is the authority in 2 Story's Equity Jurisprudence, sec. 1,102.
The only authority to which attention has been called, which seems to sustain the principle enunciated is referred to in 4 Vesey, at page 10, where Lord Mansfield is said to have held, in Barrow v. Greenough (3 Vesey, 152), that a residuary legatee could not enforce the bond given to the testator, which the testator stated to the legatee, he did not intend the obliger should pay.
The case under consideration differs somewhat from all the cases which have been cited and considered, as the legacy referred to, charged with the 186,000 liability of Mr. Melcher, was not to Mr. Melcher, but to his wife, and in that particular there seems to be an absence of parallel, and yet it is indisputable from the facts and circumstances in this case, that the testator did not intend to hold, or enforce the said claims against Mr. Melcher, but seemed to regard the estate to be given to his daughter, as though it were Mr. Melcheris, and that the amount mentioned in the Avill, her share of the estate, was to pay it.
The conditions referred to, that the charge should be made in case he left, surviving him, other children than Mrs. Melcher, was doubtless based upon the idea that his other children should not be charged with the result of Mr. Melcher’s misadventure in respect to the Pacific Mail stock, but not to be charged to Mrs. Melcher, in case he left no other children, having equal claims upon his bounty.
In passing upon this question on this final accounting, the principles of equity seem to demand that the well-defined intent of the testator should control; and whether an action at law, by the representatives of the [288]*288tate, could be maintained to enforce the liabilities in question, against Mr. Melcher, is not a question to be passed upon in this proceeding.
It is clear that the claim has not been enforced, and there is no fund in hand received upon it; and it seems to me equally clear, that there is sufficient doubt of the liability to have justified the executors in omitting proceedings at law to enforce it, but whether they may be able to do so, at a future time, or not, is doubtful, and while I have a well-settled conviction, that under all the circumstances of the case, equity would intervene to prevent the enforcement, I do nob think it proper that I should assume to pass upon the question.
With such cons'deration as11 have been able to bestow upon the question, 1 am of the opinion that the said claims against Mr. Melcher, do not constitute assets of the estate.
I have examined section 13, (2 R>. S., 84), which provides that any just claim which the testator had against his executor shall be included among the credits and effects of the deceased in the inventory; but whether it shall be so included, is dependent upon whether there . is a just claim, and it is probable that the better practice would have been for Mr. Melcher to have stated the facts in the inventory, and left the question of liability to have been determined by future proceedings, but as it was not so included, and the counsel for Mrs. Stevens on this accountiug, claims that it should have been, and that it should be adjudged to be an asset in the hands of the executors, I am not able to appreciate the force of the objection that I have no authority to pass upon that question.
Decree accordingly.