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In the Matter of National City Bank of New York, to Compel Annie Bogart, as Administratrix with the Will Annexed of the Estate of Rosa Oppenheim, to Render and Settle Her Account. National City Bank of New York, Appellant Annie Bogart, as Administratrix of the Estate of Rosa Oppenheim
In a proceeding in the Surrogate’s Court, Suffolk County, the petition of a creditor of the decedent to compel the administratrix to account for funds received and paid out by the decedent was dismissed after trial. Decree reversed on the law and the facts, and the matter remitted to the Surrogate’s Court for a new hearing, with costs to abide the event. The finding implicit in the Surrogate’s decision that-the decedent was solvent in January, 1932, is contrary to the evidence in the record.
That finding and other inconsistent findings and conclusions are reversed. The promise of future support was not fair consideration within the' meaning of section 272 of the Debtor and Creditor Law and was insufficient to validate the transfer at a time when the transferor was in debt. Under such circumstances insolvency is presumed, and the burden of overcoming the presumption is upon the respondent, who may be able, on the now hearing ordered, to adduce proof in that respect.
Close, P. J., Carswell, Johnston, Adel and Lewis, JJ., concur.