FOURTH DEPARTMENT, JANUARY TERM, 1903. [Vol. 79. ing, and thereupon reduced to writing their settlement of the accounts of Jeremiah S. Austin as executor of the will of Pinckney and as guardian of his ward, and the same was signed and acknowledged by Turner before the surrogate and filed as an accounting and settlement of the accounts of Jeremiah S. Austin as such executor and guardian, except as to some items upon which they had been unable to agree and which in their writing were excepted from such settlement and as to which proof was taken by the surrogate; after which, and on May 2, 1892, the Surrogate's Court made its decree settling the accounts of James B. Austin, as administrator, etc., of Jeremiah S. Austin, deceased, for his acts as executor of the will of Abram D. Pinckney, deceased, in which decree it was recited that on March 7, 1892, the parties appeared with their respective counsel and in open court proceeded to settle the matter of the trust of the deceased executor, which proceeding was continued until the eighth of March, and on that day, the said Austin and Turner agreeing in the main upon said accounting, a statement and stipulation in settlement and release were made and filed which remained of record in the surrogate's office as part of the proceeding to which the court expressly referred and made the same a part of its decree, and thereupon expressly found as matter of fact that on the 8th day of March, 1892, James B. Austin did account to Turner as administrator of Pinckney for all the acts and administration of the deceased executor, and had turned over to Turner all the property of the estate of Pinckney with which the estate of the deceased executor was chargeable except certain items of the decree mentioned with which it was claimed by Turner that Austin as administrator was liable, and the proceeding having been adjourned to that day, May second, and the surrogate having heard the testimony and the arguments of the parties and their respective counsel, it was adjudged and agreed by the court that Austin as administrator had fully accounted for the administration of the deceased executor for the trust committed to his care as executor of the will of Pinckney to Watson Turner as administrator with the will annexed of Pinckney, excepting as to the sums determined by the surrogate, and that upon filing proof of payment thereof the estate of Jeremiah S. Austin be discharged from all further liability. App. Div.] FOURTH DEPARTMENT, JANUARY TERM, 1903. Thereafter Turner had a judicial settlement of his accounts as administrator with the will annexed of Pinckney in the Surrogate's Court of Fulton county, in which this respondent was made a party duly served with citation, and jurisdiction acquired by the appointment of a special guardian who appeared for him on such judicial settlement; and the decree of the court was made thereon, adjudg ing that said Watson Turner had fully accounted for all moneys and property of the estate of Abram D. Pinckney, deceased, and that he pay over the amount adjudged in his hands as such administrator to the guardian of Earl M. Pinckney. These decrees of the Surrogate's Court of Fulton county were binding and conclusive upon the respondent, whose interest as legatee was represented on the accounting of Austin by Turner as the legal representative of the estate of Abram D. Pinckney, and who was made a party to the judicial settlement of the accounts of Turner as administrator of the estate of Abram D. Pinckney, as to all matters over which the Surrogate's Court of Fulton county had jurisdiction, and which were included in the accounts thus judicially settled, expressly made so by the provisions of the Code of Civil Procedure. A judicial settlement of the account of an administrator or executor is conclusive evidence against all the parties who were duly cited or appeared, and all persons deriving title from any of them, of the facts stated in the subdivisions of section 2742, among which are items allowed to the accounting party for money paid to creditors, for necessary expenses, and for his services; that the accounting party has been charged with all the interest for money received by him, and embraced in the account, for which he is legally accountable; that the money charged to the accounting party as collected is all that was collectible on the debts stated in the account, and that the allowances made to the accounting party for the decrease, and the charges against him for the increase in the value of property were correctly made. These practically cover the entire administration of an estate. It was, therefore, error for the court below to take proof on the accounting of Turner as guardian, and resettle matters involved in and covered by the account of Austin as administrator of the deceased executor, or of Turner as administrator of the estate of Pinckney. FOURTH DEPARTMENT, JANUARY TERM, 1903. [Vol. 79. It was also error for the court below to take proof and charge the appellant with the value of the machinery as personal property sold by order of the County Court of Fulton county as fixtures in the proceeding to sell the infant's real estate. That question was settled and adjudged by the order of that court in that proceeding and, therefore, conclusive. While the Surrogate's Court of Fulton county had jurisdiction to settle the accounts of Jeremiah S. Austin as guardian of the respondent, and his accounts as guardian were included in the voluntary settlement had by and between his administrator and the appellant, and in the decree of the surrogate, still the respondent not being made a party to the accounting before the surrogate, he was not concluded. But the only item with which Jeremiah S. Austin appears to have been chargeable as guardian was the rent of the infant's real estate to the time of that accounting, a period of three years, for which Austin as administrator charged himself in his account with the sum of $650. The court below upon the proofs finds the value of the infant's real estate for that period the same as allowed by Austin in his accounting with the respondent. The only items of credit allowed to Jeremiah S. Austin as guardian were $335 paid to the mother for the support of the respondent and $20 for his care by the deceased executor, both of which upon the proofs should be allowed. The greater part by far of the record on this appeal is made up of the proceedings and evidence taken on this accounting regarding matters as to which the surrogate was concluded by the decree of the Surrogate's Court and the order and judgment of the County Court of Fulton county, and, therefore, the appellant should not be charged with the expenses thereof, but should be allowed commissions, costs and taxable disbursements of the accounting which has been had and his costs of this appeal payable out of the estate. The proceeding should, therefore, be remitted and the court below directed to modify the decree entered therein, and, in place of the matters with which the appellant is now charged as guardian of the respondent, he should be charged with the amount decreed to be paid by the decree of the Fulton County Surrogate's Court. App. Div.] May 14, 1894. FOURTH DEPARTMENT, JANUARY TERM, 1903. Rents of real estate received by James B. Austin, as follows: December 1, 1892..... December 1, 1893.... December 1, 1894.. $1.360 27 175 00 150 00 100 00 650 00 Received on sale of infant's real estate and deposited in Together with accumulated interest thereon since Jan- Also with the further sum received on said sale of..... 15 00 And credited with his disbursements as guardian not included in his accounting with Austin, and charged interest with annual rests except as to said deposit in the Johnstown Bank and allowed commissions as guardian. And as so modified that the decree be entered, without further costs to either party. ADAMS, P. J., MCLENNAN and HISCOCK, JJ., concurred; WILLIAMS, J., dissented on the ground that the decree should be reversed and a new trial ordered, with costs to the appellant to abide event. WILLIAMS, J.: I think there should be a reversal and new trial ordered, with costs to the appellant to abide event. Decree reversed and proceedings remitted to Surrogate's Court, with directions to proceed and enter decree in accordance with the views expressed in the opinion of this court, with costs of this appeal to the appellant, payable out of the estate. FOURTH DEPARTMENT, JANUARY TERM, 1903. [Vol. 79. LAMONT M. BABCOCK, as Administrator, etc., of MARTHA TISDALE, Deceased, Respondent, v. SAMUEL J. CLARK, Appellant. A transfer of all the property of an old and feeble woman obtained three days before her death in consideration of an agreement to support her · · clear evidence should be required that she understood the transaction-proof to establish fraud in such a case. In an action brought by an administrator to recover the proceeds of checks drawn by the decedent to the order of the defendant, upon the ground that they were procured by fraud and undue influence, it appeared that the decedent was a maiden lady, seventy-nine years of age at the time of her death, and that during the last few months of her life she was in a feeble mental and physical condition; that she was possessed of a house and lot valued at $1,500 and savings bank deposits amounting to $2,333.27; that three days prior to the decedent's death she conveyed the house and lot to the defendant without consideration, and also transferred to him by checks the entire amount, exactly computed, of the savings bank deposits in consideration of a contract by which the defendant agreed to support and maintain her for the remainder of her natural life. This disposition of the property was at variance with the decedent's previously expressed intentions, and prior to the transfer of the savings bank deposits the decedent had furnished the means to the defendant, by checks drawn upon her savings bank acccount, to do precisely the things which he covenanted to do by his contract. Held, that the evidence required the court to submit to the jury the question whether or not the situation of the parties was such that the defendant was in a position to exercise a controlling influence over the will and conduct of the decedent, and to charge that, if the jury were of that opinion, the transaction should be scrutinized with extreme vigilance, and clear evidence should be required that the transaction was understood and appreciated by the decedent; That the evidence was sufficient to support a finding that the transfer of the savings bank deposits was procured by fraud and undue influence. APPEAL by the defendant, Samuel J. Clark, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 31st day of May, 1902, upon the verdict of a jury for $1,600.27, and also from an order entered in said clerk's office on the 3d day of June, 1902, denying the defendant's motion for a new trial made upon the minutes. W. A. Nims, for the appellant. John N. Carlisle, for the respondent. |