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FOURTH DEPARTMENT, JULY TERM, 1903.

wife called a physician. So far as appears the deceased made no inquiry or suggestions as to his ailment or the proper course of treatment, but the physician called made some suggestions as to the remedies which should be applied and the course of diet which should be followed. Whether or not the medicine was taken or whether the suggestions as to diet were followed, does not appear. At all events, on the morning following the deceased resumed his ordinary occupation, apparently was in good health and strength and continued so to be when the application for insurance was made and until shortly before his death.

We think, under all the circumstances disclosed by the evidence, it cannot be held, as matter of law, that the answers contained in the application were false and, therefore, avoided the policy, but that at most they were questions of fact for the jury, and that under the stipulation referred to the plaintiff was entitled to assume that such questions of fact would be decided favorably to her.

The law applicable to the questions involved in this case is well settled. The application, by the terms of the policy, was made a part of it, and the answers contained in the application were made warranties, and of course it is well settled that if such answers were false their falsity avoided the policy, independent of the question whether they were material or not, so that the only question presented is whether or not the answers to the questions contained in the application were, as matter of law, false.

Such questions and such answers must be interpreted reasonably. Applying the rule of reasonable interpretation we think it cannot be said that the answers made by the deceased to the questions propounded in the application were false as matter of law.

It follows that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except WILLIAMS, J., dissenting.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.

FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

JOHN G. BECKER, Respondent, v. FREDERICA STUDEMAN, Appellant. Res adjudicata — a judgment in an equitable action defining a boundary line is conclusive between the same parties on the subsequent trial of an ejectment suit.

A dispute having arisen between two adjoining lot owners respecting the dividing line between their premises, one of the parties brought an action in equity to establish the dividing line, while the other party brought an action in ejectment to recover possession of a strip of land which he claimed belonged to him. The two actions were referred to the same referee, who, after a trial of the equitable action, decided the same. The plaintiff in that action accepted the conclusion of the referee and entered a judgment in accordance therewith. On the trial of the ejectment action, the judgment roll in the equitable action was received in evidence and the referee awarded judgment in favor of the plaintiff in the ejectment action in accordance with the conclusion reached by him in the equitable action.

Upon an appeal from the judgment rendered in the ejectment action it was Held, that the defendant in that action could not insist that the conclusion reached by the referee in the equitable action was the result of a mistake upon the part of the referee, and that, if such judgment was corrected so as to accord with the referee's intention, it would embrace the premises awarded to the plaintiff in the ejectment action;

That any error committed by the referee in the equitable action could not be corrected by a collateral attack thereon.

APPEAL by the defendant, Frederica Studeman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 2d day of October, 1902, upon the report of a referee awarding possession of a certain parcel of land to the plaintiff.

Thomas H. Larkins, for the appellant.

Elton D. Warner, for the respondent.

ADAMS, P. J.:

The parties to this action are the owners of adjoining premises situate upon Lion street and south of the intersection of Seventh street and Lion street, in the city of Dunkirk; and this action is in ejectment to recover possession of a strip of land two feet and onehalf inch in width along the south line of the plaintiff's premises.

It seems that a dispute having arisen respecting the dividing line between the premises of the respective parties, the defendant herein

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brought a suit in equity to establish such line, and upon the trial thereof it was made to appear that the disputed line in all the conveyances upon which the plaintiff's title rested was located 134 feet south of the intersection of Seventh and Lion streets, whereas it was claimed by her that it should have been but 128 feet from such intersection. Both pieces of land were situated on the west side of Lion street, the land of the plaintiff in the equity suit being south of the land of the defendant in that suit.

The present action was commenced at about the same time as the suit in equity, and both actions were referred to the same referee, who, after a trial of the equitable action, found that there was a mistake in the description of the line in question, and that the same, instead of being 134 feet south of the corner of Seventh and Lion streets, was but 132 feet and one-half inch therefrom. The plaintiff in that action accepted the conclusion of the referee and entered a judgment in accordance therewith, which definitely established the disputed line at the location named.

Upon the trial of the present action the judgment roll in the equitable action was received in evidence, and after receiving additional testimony the referee found in favor of the plaintiff, awarding him possession of the strip two feet and one-half inch in width next north of the line as located and established in the equitable action. It is now insisted by the defendant's counsel that the conclusion reached by the referee in the equitable action and the judgment entered thereon were erroneous in that the line in dispute should have been located one foot north of the northerly line of a barn upon the defendant's premises; that such error was the result of a mistake upon the part of the referee, and that if the same were corrected so as to accord with the referee's intention and a new line established, it would embrace the premises awarded to the plaintiff in the present action.

This brief statement of the facts is, in our opinion, sufficient to dispose of the present appeal, for it is hardly necessary to suggest that any error committed by the referee in the equitable action cannot be corrected by a collateral attack. (Audobon v. Excelsior Ins. Co., 27 N. Y. 216, 221; Stannard v. Hubbell, 123 id. 520.) Either an appeal should have been taken from the judgment in the equitable action, or a motion made to open the same for the purpose

FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

of having the mistake corrected; and inasmuch as the defendant has seen fit to adopt neither of these remedies it is fair to assume that she was quite content with the judgment entered by her attorney, and as both actions were tried before the same referee, who could not have reached the conclusion he did in the present action, if he had been convinced of the commission of the alleged error in the former action, it must be further assumed, we think, that the defendant's contention is not well founded. But however that may be, it is sufficient, so far as this appeal is concerned, to say that for obvious reasons the defense relied upon is not available to the defendant in the present action. The judgment appealed from should, therefore, be affirmed.

All concurred.

Judgment affirmed, with costs.

In the Matter of the Judicial Settlement of the Account of JoHN FURNISS, as One of the Executors of MARY ANN BOSTWICK, Deceased.

WILLIAM FURNISS and Others, Appellants; ROBERT FURNISS and ROSE FURNISS, as Executors, etc., of JOHN FURNISS, Deceased, Respondents.

Surrogate his power to turn an accounting instituted by the executors of a deceased executor into a judicial settlement · commissions taken by an executor before their allowance by the surrogate-claim for board by a brother against the estate of his deceased sister-proof required to sustain it.

Where one of two executors of a will dies, and his personal representatives institute a voluntary proceeding for the settlement of his accounts and bring all of the parties interested in the estate before the court, the surrogate has jurisdiction, under section 2606 of the Code of Civil Procedure, as amended by chapter 409 of the Laws of 1901, to turn the accounting into a judicial settlement. In such a case the court has precisely the same jurisdiction it would have had if the letters of the deceased executor had been revoked during his lifetime and he had been called upon to deliver up the assets of the estate remaining in his hands.

The allowance of commissions to an executor is a matter to be determined by the surrogate, and an executor has neither the power nor the right to pay or

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reserve commissions to himself until they have been ascertained and allowed in the manner provided by statute.

Under section 2730 of the Code of Civil Procedure such allowance should not be made until the settlement of the estate.

Semble, that the proper remedy for such a payment by the executor to himself is to charge him with interest thereon from the date of its withdrawal. Upon an executor's accounting the executor, who was a brother of his testatrix, presented a claim for board and attendance furnished to the testatrix for a period of five or six years, during which time she had resided with the executor and his wife. The only evidence tending to establish an agreement on the part of the testatrix to pay for such board and attendance was given by a son of the executor, who testified that he heard the testatrix say, upon an occasion when she had come into possession of a sum of money, that now she would be able to repay the witness' father and mother for all that they had done for her, if not before, then after, her death.

Held, that the relationship existing between the testatrix and the executor raised the presumption that the board and attendance were furnished gratuitously, and that the evidence was not sufficient to rebut this presumption. SPRING and WILLIAMS, JJ., dissented.

APPEAL by William Furniss and others from a decree of the Surrogate's Court of the county of Seneca, entered in said Surrogate's Court on the 28th day of September, 1902, settling the accounts of John Furniss as one of the executors of Mary Ann Bostwick, deceased.

Henry E. Miller and Charles E. Opdyke, Jr., for the appellants.

Frederick L. Manning and George E. Zartman, for the respondents.

ADAMS, P. J.:

This is a voluntary proceeding instituted by the executors of the last will and testament of John Furniss, deceased, who was one of two executors of the last will and testament of one Mary Ann Bostwick, deceased, for the settlement of the account of their testator.

All the parties interested in the estate were before the court upon the accounting and consequently, under the provisions of section 2606 of the Code of Civil Procedure, as the same was amended in 1901 (Laws of 1901, chap. 409), the surrogate possessed jurisdiction to turn the same into a judicial settlement. In other words, the court APP. DIV.-VOL. LXXXVI.

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