Claim of Marcellus v. Estate of Marcellus

*75 Martin, J. This was a special proceeding in the Surrogate’s Court of Schenectady county instituted by one of the administrators of the estate of John E. Marcellus to establish a claim in his own favor against the estate of his intestate. The first question presented is whether the Surrogate’s Court had jurisdiction to entertain the application of the appellant, or to make any decree in the proceeding thus inaugurated. We think it had. This court, in Matter of Ryder (3 Silver-nail’s N. Y. Ct. Appeals Reps. 607; 129 N. Y. 640, 642), held that a Surrogate’s Court had no' jurisdiction to entertain a proceeding for the sole purpose of permitting an executor to prove his claim against his decedent’s estate, but when that decision was made chapter 460 of the Laws of 1837, which provided that “ no part of the property of the deceased shall be retained by an executor or administrator in satisfaction of his own debt or claim, until it shall have been proved to and allowed by the surrogate, and such debt or claim shall not be entitled to any preference over others of the same class,” had been repealed and no equivalent provision had been adopted. But subsequently section 2719 of the Code of Civil Procedure was amended by chapter 686 of the Laws of 1893, by inserting therein the provision which was formerly contained in the statute of 1837. Therefore, it becomes obvious that as the decision in the Ryder case was based upon the repeal of the statute of 1837, and as that statute has since been re-enacted, that case has no application to this. As the law now stands, the previous decisions of this court under the statute of 1837, to the effect that such jurisdiction is vested in the Surrogate’s Court by virtue of that provision of the statute, are pertinent and controlling. (Kyle v. Kyle, 67 N. Y. 400, 408; Shakespeare v. Markham, 72 N. Y. 400; Boughton v. Flint, 74 N. Y. 476.) Assuming then, as we must, that the Surrogate’s Court had jurisdiction of this proceeding, the question is presented whether any error of law was committed which requires a reversal by this court. .The decree of the surrogate was affirmed by the Appellate Division. While the decision of *76 that court is said to have been unanimous, we find nothing in the record showing that fact, and it must, therefore, be treated as otherwise in determining the questions presented upon this appeal. The only substantial error claimed by the appellant is that, in view of the evidence given upon the trial, the learned surrogate was not justified in refusing to allow his claim. It cannot be held, as a matter of law, that the appellant’s claim should have been allowed. We are of the opinion that the findings of fact contained in the decision of the surrogate were sustained by the evidence, and that the surrogate, upon the proof before him, was justified in rejecting the claim. Practically the only evidence in the case was the testimony of the claimant himself, who was a vitally interested witness. Therefore, the question of his credibility was presented for the surrogate to pass upon. He was not compelled to find in the appellant’s favor simply because he had testified to matters more- or less improbable which tended to establish his claim, especially where, if all 'to which he testified was found true, it was insufficient to require a decision in his favor. Public policy required that his claim against the estate he represented should be established by very satisfactory evidence, and it was the plain duty of the surrogate, in the absence of such proof, to reject it. (Matter of Van Slooten v. Wheeler, 140 N. Y. 624, 633.) The evidence in this case fell far short of being sufficient to require an allowance of the appellant’s claim, and the decision of the learned surrogate disallowing it was properly affirmed by the court below. We know of no principle upon which the claimant was entitled to recover against the estate of which he was an administrator upon a demand which clearly belonged to the estate of Sarah Marcellus, and which should have been enforced by the executor of that estate, or after his death by an administrator of such goods and chattels as were left unadministered. That the claim to the property in question upon the death of Sarah Marcellus vested in her executor, subject to the provisions of her will and codicils, there can be no *77 doubt. The property in question, together with her other property, was required by her will to be first devoted to the payment of her debts and general legacies. Hence, no part of it could be claimed by the appellant until such debts and legacies were paid and the estate of Sarah was settled by the executor, or by an administrator to be thereafter appointed to administer upon the property remaining in the executor’s hands at the time of his death. We are also of the opinion that even if the proceeding was properly instituted by the appellant, and the title to the residue of the estate after the payment of the debts and general legacies vested in him, still that the proof was insufficient to show that the sixty-five hundred dollars remained in the hands of John N. Marcellus at the time of his death, or that the one-thousand-doilar mortgage was not properly disposed of by the executor in contributing to John’s support according to the provisions of the will and codicils. The proof merely discloses that on the day following the death of the testatrix the money in question and the mortgage were in the hands of John ¡N. Marcellus. Letters testamentary were not issued to the executor until more than ten days later, and until then he was not entitled to the possession of the property, nor would he have been justified in interfering with it further than was necessary for its preservation or safekeeping. (Code Civil Procedure, § 2613.) Therefore, if it was safe in the hands of John LT. Marcellus, the executor properly permitted it to remain there until letters were issued. When they were issued, it then became his duty to take possession of the property and administer it according to the provisions of his testatrix’s will. In the absence of proof to the contrary, it is to be presumed he discharged that duty. The general presumption is that no official or person acting under an oath of office will do anything contrary to his official duty, or omit anything which his official duty requires to be done. (Mandeville v. Reynolds, 68 N. Y. 528, 534; Hartwell v. Root, 19 Johns. 345.) The same presumption obtains as to a servant’s having discharged the duty imposed upon him. (Turner v. Kouwen *78 hoven, 100 N. Y. 115.) That presumption was strengthened by the fact that the mortgage was in the possession of the executor and transferred by him, as there is no reason to suppose that he would have taken possession of the mortgage and not taken the money at the same time. There is certainly no proof in the record to show that the executor did not take possession of the money as well as the mortgage, or that the former was not in his possession at the time of his death; nor was there evidence sufficient to justify the surrogate in holding that the mortgage was not properly transferred to John N. Marcellus by the executor. Without further discussion of the questions argued upon this appeal and presented by the briefs of the respective counsel, we think it is apparent that the evidence before the surrogate was insufficient to justify him in holding otherwise than that the claim of the appellant should be rejected. The judgment should be affirmed, with costs. Parker, Ch. J., Gray, Bartlett, Vann, Cullen and Werner, JJ., concur. Judgment affirmed.