In re the Estate of McDonough (132 A.D. 614, 1909)

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 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