In re the Estate of McDonough

Kellogg, J.: At the death of Ann McDonough, October 20, 1904, she and her sisters Elizabeth McDonough, Catherine McDonough, and her niece Ann E. Morton, the appellant, were residing together as one family, Ann apparently being: the head of the family. They were all old ladies, the niece being about sixty-nine years old". The house was the property of Ann individually or of her and the others. The furniture and personal property were formerly the property of the' mother of the appellant Morton. There was on deposit in the name of Ann in savings banks $1,^01.83. After the death of Ann the remaining sisters and the niece continued to form the family until July 19,1905, when Elizabeth died, and thereafter Catherine and her niece constituted the family, and they believed that - they alone were entitled to the estate of Ann and Elizabeth, being unaware of the existence of the respondent Rebecca McDonough, a half sister. Catherine, with funds belonging to her or to her and the appellant Morton, paid the doctor’s bill, and funeral expenses of Ann, amounting to $350. Letters of administration were issued to Catherine upon the estate of Ann in August, 1905, and shortly thereafter Ann’s accounts in the savings banks were closed, the money being transferred to the individual credit of-Catherine. This was done with the knowledge [616] and action of Catherine and the appellant Morton. Catherine died October 4, 1905, leaving" a last will ¡and testament by which the appellant Morton is the sole executrix and legateie, and after letters wore issued to her as executrix she paid the attorney $50 for his sei-vices in obtaining letters of administration to Catherine on the estate of Ann, and also the transfer tax of-'$21ÉÍ.42 which was assessed against her on account of her interest in Ann’s estate, which sum apparently was based wholly or in a large part upon, real estate received by her from Ann, ¡and which in any event" need not he considered here, as it was an item which should befpaid by her personally a,nd not by Ann’s estate. She also paid $100 to her attorney for services upon this accounting. The funeral expenses and the attorney’s bill were not primary debts -against the estate of Ann but were obligations existing against Catherine personally, but she could reimburse herself from the estate' after the items- were approved by the surrogate. . Catherine could not have been compelled to distribute oi* pay over the funds of the estate without an allowance to. her for so ranch of those items as met the approval of the surrogate, and her executrix occupies the same position. Those items "and the doctor’s bill have been approved by the surrogate, and there is no reason why they should not be .credited to Catherine’s executrix upon this accounting^ The payment by -the appellant Morton -of some of those items after the death of Catherine was not an act of administration upon the estate of Ann, but was a payment by .her of the debts of her testar tatrix, which payments, when approved by the surrogate^ she is entitled to deduct from the moneys due by .Catherine to "the estate of Ann. It is immaterial whether Catherine took the money from Ann’s bank account or from her own pocket with which she paid the doctor’s bill and funeral- expenses. "They were disbursements upon account of estate and must be allowed her. Catherine an<I" the appellant Morton.continued to reside 'as a- family in substantially the same manner as during the lifetime of Ann and Elizabeth. • They acted together, and the taking of the moneys from the bank.and .putting the same in the private account of Catherine while it could legally be done only by Catherine, was, in effect, the act "of both and was, in substance, an appropriation of the funds for the benefit of the family as it then existed, and in effect may be treated ás a family [617] settlement and adjustment of the estate between them. For all practical purposes the estate was administered between all the parties whom the executrix understood were entitled to share therein, and it seems unnecessary and inequitable to compel the appellant Morton to raise the funds and turn the whole original estate over to the new administratrix, the only effect of which can be to make trouble and additional executors’ and attorneys’ fees. It is a needless formality under the circumstances of this case for the appellant Morton to pay these funds over to the new administratrix and then for her to hand them back to the former, less her commissions. In fact Catherine and the appellant Morton have received a larger share from the estate than belonged to them, and they should only be .required to pay over the excess. We should treat that done-, which the parties deemed done, that is, that the estate between the executrix and the appellant Morton was settled. In order that Rebecca may receive her share the appellant Morton individually and as executrix must pay it. Catherine’s acts were irregular, but were intended for the best interests of all concerned. If she had been right in assuming that' only she and her niece were interested in the estate no harm could follow, and it is only right and proper that so far as they are concerned to treat this as a family settlement which under proper circumstances is always favored, but the unknown next of kin cannot be prejudiced by their acts. It does not appear -whether Elizabeth left a will or not, or whether she left debts or not, and, therefore, the share coming to her from Ann’s estate cannot be, treated as administered. The decree, therefore, should be modified as follows: (1) The above items should be credited to the executrix. (2) Catherine and the appellant Morton should be treated as having received their one-quarter share of Ann’s estate. (3) The one-quarter share of Ann’s estate belonging to Rebecca and the one-quarter share belonging, to the estate of. Elizabeth should be paid to the administratrix of Ann to be disposed of according to law. (4) The appellant Morton upon this accounting should be allowed full commissions on all moneys received and paid out, including the shares of herself and Catherine, and half commissions upon the sums she pays over to the administratrix of Ann. [618] (5) Costs ia the Surrogate’s Court should be allowed to the appellant Morton from the estate before the shares are ascertained ; costs should be allowed the appellant Morton in this court to be deducted from the share, of Rebecca in Ann’s estate. Smith, P. J., and Sewell, J., concurred ; Chester, J.,' dissented in opinion in which Cochrane, J., concurred. .