The Surrogate.—The exception of the administrator to the disallowance of his personal claim against the estate should be overruled, for the reason that no proof was given to justify its allowance.
[503]*503By section 43, 3 R. S., 96 (6 eel.), it is provided that none of the decedent’s property shall be retained by an executor or administrator to satisfy Ms debt or claim, until it shall have been proved to, and allowed by, the Surrogate.
It is quite evident that when the statute requires the claim to be proved, it contemplates the same proof which, is required to prove any other claim against the estate, when objected to ; and that the affidavit of the executor, verifying Ms claim, does not amount to such proof, nor is such an affidavit ever denominated “proof.”
In Williams v. Purdy (6 Paige, 166), the Chancellor held, that the executor or administrator must make the usual oath to his claim, and also produce legal evidence of the existence of the debt.
The next finding excepted to was , as to the claim of one Underhill for $185.79, duly presented to the administrator ; the same was never objected to by him, nor did he offer to refer it. By section 46, 3 R. S. (6 ed.), 96, it is provided that an executor or administrator may require satisfactory vouchers, and an affidavit that the claim is justly due, &c.; and by section 47, the executor or administrator, if lie doubt the justness of the claim presented, may agree, in writing, to refer the same. By section 49, it is provided that if a claim be disputed or rejected, and not referred, the claimant shall commence a suit within six months, &c.
These sections seem to imply some act on the part of the representative of the estate, by which he shall indicate Ms rejection or dispute of the claim, but in Cooper v. Felter (6 Lans., 485), Mr Justice Leonard, at' p. 487, states that the Court of Appeals in Tucker v. Tucker, held [504]*504that when a demand was presented to an executor or administrator and not rejected or admitted, and no offer made to refer, it must be regarded as a disputed demand, that the executor or administrator could not be permitted to occupy an equivocal position, but an examination of that case (4 Keyes, 136), shows that when the claim was presented, the administratrix was asked what she had to say to it, and answered that she had nothing to say to it, which occurred on February 6,1857; but it also appeared that in the same month, that when she served notice upon the claimant of her final accounting, she stated to the claimant that they did not consider it a legal debt, and they had no right to pay it.
Upon these facts, Mr. Justice Milleb, in his opinion, held that the claim at the time of the final account was disputed, within the meaning of the statute ; that when it was presented it was not admitted ; that at one time the administratrix said she had no right to pay it, and at another the administratrix said, there was fraud in the claim and he was opposed to paying it. And npon the accounting, the demand was presented and its allowance opposed. The learned judge, at p. 148, says, “that representatives, in the discharge of their duties, are not at leave to occupy the equivocal position of neither allowing or rejecting an account presentedand it seems to me that to hold, as did Mr. Justice Leonabd in Cooper v. Felter, as to the tenor of this decision, would be to adjudge that such representatives of an estate could occupy such an equivocal position. I fail to see anything in the latter case to justify the conclusion, that if the claim is not admitted it should be considered re[505]*505jected, unless the term “admitted” is used in contradistinction to “ rejected. ”
For in that case, before the Court of Appeals, there was abundant evidence that the account was disputed within a few days of its presentation, while in the case in Lansing there is nothing stated to indicate what was done when the claim .was presented.
I am, therefore, of the opinion that when a representative of an estate has a claim duly verified presented to ■him, it is incumbent upon him either to admit or reject the claim ; or, in case he shall not be possessed of the facts justifying the determination of the question, he should take the matter under consideration, and when he reaches a conclusion, advise the claimant thereof. Otherwise, the latter would seem to be in doubt whether, he should offer to refer, or commence an action to enforce it.
The exception should be overruled.
The first item in schedule C, rejected, of $6, seems to have been disallowed for the reason that it was covered by another item allowed.
As to the next succeeding five items, amounting to over $400, they appear to be charges for disbursements, •in the matter of the lunacy proceedings relating to the decedent’s widow, subsequent to his death ; as to which I am entirely unable to perceive any legal authority to insert them as a disbursement of this estate. When the intestate died, his obligation to even support his wife ceased, and whatever interest she had in his estate became hers at that time. If her estate is liable for the expenses of the proceedings in lunacy, they will be chargeable to it on the accounting by her representa[506]*506tive. The administrator with 'the will annexed had no more right to charge those expenses to this estate, than he would a disbursement for the support of an entire stranger to it, especially as against the creditors contesting. And the same may be said respecting the representative of the estate, if any claim against him as such should be presented to him for his approval or rejection, and its payment might be subject to contest on his accounting.
As to the last item rejected in that schedule, the referee does not state the ground of its rejection. But it is presumed that it was upon the ground that the preparation of the administrator’s account was a part of his duty, for which he was presumed to be compensated by his commissions, and that to entitle him to make such a charge, he should have shown before the referee, that the account was such as to justify the employment of an account was to prepare the same, and that the burden of such proof was upon the accounting party.
The absence of this proof, in my opinion, justified the rejection of the charge.
The exceptions to the disallowance of the items above-mentioned, should, therefore, be overruled.
The only question remaining to be considered, is the disallowance by the referee of the alleged loss of $900, on the sale of the jewelry, in his second report; it appearing that certain jewelry was inventoried at $1,500, and the administrator charges himself $600 on the sale thereof, without giving any explanation or proof of the circumstances of the sale. He attended before the referee, and announced his readiness to be examined upon that subject by the contestants, but declined to [507]*507give any explanation in liis own behalf; and the question is squarely raised, whether, under objection, the verified account, setting forth the. amount received on sale, is prima facie evidence, needing no explanation of the discrepancy between the inventory and the price realized at the sale. By section 69, 3 R. S., 100 (6 ed.), it is provided that the Surrogate may allow an executor or administrator for property perished or lost without his fault, and section 70.
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The Surrogate.—The exception of the administrator to the disallowance of his personal claim against the estate should be overruled, for the reason that no proof was given to justify its allowance.
[503]*503By section 43, 3 R. S., 96 (6 eel.), it is provided that none of the decedent’s property shall be retained by an executor or administrator to satisfy Ms debt or claim, until it shall have been proved to, and allowed by, the Surrogate.
It is quite evident that when the statute requires the claim to be proved, it contemplates the same proof which, is required to prove any other claim against the estate, when objected to ; and that the affidavit of the executor, verifying Ms claim, does not amount to such proof, nor is such an affidavit ever denominated “proof.”
In Williams v. Purdy (6 Paige, 166), the Chancellor held, that the executor or administrator must make the usual oath to his claim, and also produce legal evidence of the existence of the debt.
The next finding excepted to was , as to the claim of one Underhill for $185.79, duly presented to the administrator ; the same was never objected to by him, nor did he offer to refer it. By section 46, 3 R. S. (6 ed.), 96, it is provided that an executor or administrator may require satisfactory vouchers, and an affidavit that the claim is justly due, &c.; and by section 47, the executor or administrator, if lie doubt the justness of the claim presented, may agree, in writing, to refer the same. By section 49, it is provided that if a claim be disputed or rejected, and not referred, the claimant shall commence a suit within six months, &c.
These sections seem to imply some act on the part of the representative of the estate, by which he shall indicate Ms rejection or dispute of the claim, but in Cooper v. Felter (6 Lans., 485), Mr Justice Leonard, at' p. 487, states that the Court of Appeals in Tucker v. Tucker, held [504]*504that when a demand was presented to an executor or administrator and not rejected or admitted, and no offer made to refer, it must be regarded as a disputed demand, that the executor or administrator could not be permitted to occupy an equivocal position, but an examination of that case (4 Keyes, 136), shows that when the claim was presented, the administratrix was asked what she had to say to it, and answered that she had nothing to say to it, which occurred on February 6,1857; but it also appeared that in the same month, that when she served notice upon the claimant of her final accounting, she stated to the claimant that they did not consider it a legal debt, and they had no right to pay it.
Upon these facts, Mr. Justice Milleb, in his opinion, held that the claim at the time of the final account was disputed, within the meaning of the statute ; that when it was presented it was not admitted ; that at one time the administratrix said she had no right to pay it, and at another the administratrix said, there was fraud in the claim and he was opposed to paying it. And npon the accounting, the demand was presented and its allowance opposed. The learned judge, at p. 148, says, “that representatives, in the discharge of their duties, are not at leave to occupy the equivocal position of neither allowing or rejecting an account presentedand it seems to me that to hold, as did Mr. Justice Leonabd in Cooper v. Felter, as to the tenor of this decision, would be to adjudge that such representatives of an estate could occupy such an equivocal position. I fail to see anything in the latter case to justify the conclusion, that if the claim is not admitted it should be considered re[505]*505jected, unless the term “admitted” is used in contradistinction to “ rejected. ”
For in that case, before the Court of Appeals, there was abundant evidence that the account was disputed within a few days of its presentation, while in the case in Lansing there is nothing stated to indicate what was done when the claim .was presented.
I am, therefore, of the opinion that when a representative of an estate has a claim duly verified presented to ■him, it is incumbent upon him either to admit or reject the claim ; or, in case he shall not be possessed of the facts justifying the determination of the question, he should take the matter under consideration, and when he reaches a conclusion, advise the claimant thereof. Otherwise, the latter would seem to be in doubt whether, he should offer to refer, or commence an action to enforce it.
The exception should be overruled.
The first item in schedule C, rejected, of $6, seems to have been disallowed for the reason that it was covered by another item allowed.
As to the next succeeding five items, amounting to over $400, they appear to be charges for disbursements, •in the matter of the lunacy proceedings relating to the decedent’s widow, subsequent to his death ; as to which I am entirely unable to perceive any legal authority to insert them as a disbursement of this estate. When the intestate died, his obligation to even support his wife ceased, and whatever interest she had in his estate became hers at that time. If her estate is liable for the expenses of the proceedings in lunacy, they will be chargeable to it on the accounting by her representa[506]*506tive. The administrator with 'the will annexed had no more right to charge those expenses to this estate, than he would a disbursement for the support of an entire stranger to it, especially as against the creditors contesting. And the same may be said respecting the representative of the estate, if any claim against him as such should be presented to him for his approval or rejection, and its payment might be subject to contest on his accounting.
As to the last item rejected in that schedule, the referee does not state the ground of its rejection. But it is presumed that it was upon the ground that the preparation of the administrator’s account was a part of his duty, for which he was presumed to be compensated by his commissions, and that to entitle him to make such a charge, he should have shown before the referee, that the account was such as to justify the employment of an account was to prepare the same, and that the burden of such proof was upon the accounting party.
The absence of this proof, in my opinion, justified the rejection of the charge.
The exceptions to the disallowance of the items above-mentioned, should, therefore, be overruled.
The only question remaining to be considered, is the disallowance by the referee of the alleged loss of $900, on the sale of the jewelry, in his second report; it appearing that certain jewelry was inventoried at $1,500, and the administrator charges himself $600 on the sale thereof, without giving any explanation or proof of the circumstances of the sale. He attended before the referee, and announced his readiness to be examined upon that subject by the contestants, but declined to [507]*507give any explanation in liis own behalf; and the question is squarely raised, whether, under objection, the verified account, setting forth the. amount received on sale, is prima facie evidence, needing no explanation of the discrepancy between the inventory and the price realized at the sale. By section 69, 3 R. S., 100 (6 ed.), it is provided that the Surrogate may allow an executor or administrator for property perished or lost without his fault, and section 70. provides that he shall sustain no loss by decrease without his fault of any part of the estate, but shall be allowed therefor, on settlement of his account.
It would seem that the condition of such allowance “ without fault,” imposed the duty on the accounting party of showing affirmatively the existence of the condition. (See Matter of Jones, 1 Redf., 263.)
I am of the opinion that it would be a very unsafe rule to establish that the representative of an estate may overcome the force of an inventory, by a mere statement that he has sold the property at a greatly reduced price, and thus throw the burden of proving neglect or bad faith upon the contestants, who cannot be presumed to know the manner of sale, or the circumstances under which it was made, though I am not able to find any direct authority upon the subject.
It seems to me it is plainly intimated, by section 14, 3 R. S., 733 (6 ed.), which provides that in any action against executors, &c., in which the fact of administer ing the estate shall come in issue, and the inventory made by them shall be given in evidence, that the plaintiff or defendant may rebut the same by proof : 1st, that any property or effects have been omitted in [508]*508such inventory, or were not returned therein at their true value. 2d, that the property has perished or "been lost, without their fault, or fairly sold by them at private or public sale, at a less price* or that since the inventory it has deteriorated or enhanced in value.
Though the terms of this section are. somewhat obscure, I understand the meaning to be, that where the executors or administrators give the inventory in evidence, to fix their liability, the plaintiff may show the omission of property therefrom, or an under valuation, or an enhanced value. While, if the plaintiff shall give it in evidence, to fix their liability, they shall be at lib- , ertv, in order to overcome if, to show that the property has perished or been lost without their fault; that it has been fairly sold at private or public sale, at a less price, or that it has deteriorated ; and that these conditions must be affirmatively shown, in order to overcome the presumption raised by the inventory, by the parties seeking to overcome it.
The exception to the finding of the referee, as to the item of loss claimed as a credit, should be overruled, and the reports confirmed.
Ordered accordingly.