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In the Matter of the Judicial Settlement of the Intermediate Account of Proceedings of Henry R. Burt and James S. Warren, as Executors, etc., of Clara S. Burt, and the Judicial Settlement of the Intermediate Account of Proceedings of Henry R. Burt and James S. Warren as Trustees under the Last Will and Testament of Clara S. Burt, James S. Warren, Individually and as and Trustee, etc., of Clara S. Burt, Appellant Irving Trust Company, etc., of Henry R. Burt
Decree of the Surrogate’s Court of Westchester county settling the accounts of executors and trustees modified by striking out the provision therein dismissing objections filed by appellant and, in lieu thereof, incorporating therein a provision surcharging the executor-respondent in the sum of $2,552.76, together with interest.
As so modified, the decree, in so far as an appeal is taken, is unanimously affirmed, with costs, payable by the respondent personally, and the matter remitted to the Surrogate’s Court to proceed accordingly. The decedent’s husband was liable for the medical, hospital and incidental expenses incurred during the wife’s last illness in so far as they were commensurate with his means, and was under an obligation to pay them. There is no contention that he was financially unable to pay them.
The testimony of the surviving husband with respect to transactions b'etween his deceased wife and himself whereby he was relieved of such obligation was incompetent under section 347 of the Civil Practice Act, and it was stipulated on the argument that the papers on submission, including the stipulation as to objections to evidence, were to be construed as meaning that appropriate objections were made and exceptions taken to adverse rulings.
Present — Lazansky, P. J., Hagarty, Davis, Johnston and Taylor, JJ. [160 Mise. 218.]