consequence of the fault and neglect of the administrator, and that he must make the loss good.

But it is suggested that every fact relating to this mortgage in question was fully presented to the referee, and that the administrator, by the exercise of the utmost diligence, could have established no further facts. That may be true, but the difficulty with that proceeding does not seem to have been so much with the facts as with the law applicable thereto. It was no more the duty of the administrator to secure a full presentation of the facts before the referee than it was to secure the services of some competent person to present to the referee the legal principles applicable thereto, and it is entirely apparent that the slightest reference to the authorities above cited would have resulted in defeating this claim. In place of providing the estate with the protection which would have been afforded by the services of a competent attorney upon the hearing, the administrator attends such hearing alone, objects to nothing, but evidently acquiescing in and consenting to all that was being said or done to fix this liability upon the estate. In other words, he practically, and it seems to me needlessly and unjustly, submitted to a default in this matter. While it is difficult to understand how the interests of this estate have been in the least subserved by the reference to the claim based upon the deficiency judgment, and while it may be very seriously doubted as to whether there was any sanction or authority for such practice, I am hardly willing to go to the extent of holding that the administrator should be personally charged with the expenses and disbursements of such reference.

The personal estate of the intestate consisted, in part, of thirty-six dairy cows, one ox team, and one horse team, besides various farming tools and implements. The administrator used such personal property, to a greater or less extent, from the death of the intestate to the sale thereof, on the 3rd of August, 1891, and had the avails thereof for his own individual benefit. The evidence shows that the use of such property during that

time was fairly worth the sum of $288, and the administrator should be charged with that amount.

No claim is made against the administrator for interest upon the proceeds of the sale of the personal estate, but it is claimed by the contestants that he should be charged with interest upon the surplus moneys received by him as above stated, to wit, $959.03, on December 31, 1891. He accounts for no interest thereon, nor does the evidence show that he has actually received any income therefrom, but there was nothing in the financial condition of this estate which justified the administrator in permitting this fund to lie idle and unproductive. He was entitled to a reasonable length of time in which to invest it. Six months was entirely sufficient for that purpose, and he should be charged with interest thereon after the expiration of six months from date of its receipt by him. Halsted v. Hyman, 3 Bradf. Sur. 426; Redf. Law & Pr. Sur. Cts. (3rd Ed.) 519. The remaining questions in this case relate to the administrator's personal claim. A portion of such personal claim consists of three promissory notes made by the intestate, and payable to the order of the administrator. The execution and delivery of these notes is established by the evidence. Their validity as subsisting claims against the estate is substantially conceded. The only question regarding them is as to the time for which interest should be allowed the administrator thereon, the contestants objecting to the allowance of any interest thereon after the sale of the personal estate, and the receipt by the administrator of sufficient funds therefrom to fully satisfy these demands. Executors and administrators are expressly forbidden by statute from retaining any portion of the estate in satisfaction of their own debt or claim "until it shall have been proved to and allowed by the surrogate." 2 Rev. St. p. 88, sec. 33. Upon the judicial settlement of an executor or administrator, he may prove any debt owing to him by the decedent. Code Civil Pro. section 2739. But the surrogate has no jurisdiction to entertain a proceeding solely for the purpose of proving such personal claim. In re Ryder, 129 N. Y. 640, 29 N. E. Rep. 309. So

the situation is that, while the administrator is forbidden by statute from paying his own claim until it shall have been properly established, he is afforded no opportunity, under the rules of practice, of so establishing the same until the judicial settlement of his accounts: It cannot be claimed that the administrator in this case has unreasonably delayed such judicial settlement. He is in no manner responsible for the delays which the law has imposed upon him in the adjustment of such claim, and he should not be deprived of his interest.

The balance of the administrator's personal claim consists of various items of account for work performed and money expended by the administrator for the intestate from May 27 to September 26, 1890, amounting in all to the sum of $336.60, The claim is verified in the usual manner, and admits payments of various sums upon said account, to the amount of $195.45. While the administrator is required to present his claim, accompanied by his affidavit, verifying the same, before it can be allowed (Terry v. Hayton, 31 Barb. 519), such verification in no way establishes the validity of such claim. The existence of the debt must be established by legal evidence. Underhill v. Newburger, 4 Redf. Sur. 499; Williams v. Purdy, 6 Paige, 168. Claims on part of personal representatives against the estates they represent are regarded with more or less suspicion when not founded upon some written obligation to pay. Wood v. Rusco, 4 Redf. Sur. 380; Kearney v. McKeon, 85 N. Y. 136, 137. Upon the trial no evidence was given establishing, or tending to establish, some of the items of said account. The evidence relating to the balance thereof was very slight and unsatisfactory, but perhaps sufficient prima facie; and, allowing the utmost latitude to the testimony offered in support of this claim, the total amount of all items proven is the sum of $193.39. It is contended that no part of this amount even should be allowed; that the presumption arising from the giving of the note by intestate to the administrator under date of November 25, 1890, which was after the close of the account sought to be established, is that such note was given in full set

tlement of all mutual accounts up to that date, and there seems

to be some authority for such contention. Lake v. Tysen, 6 N. Y. 461; Maxon v. Scott, 55 N. Y. 249. It is not, however, necessary to determine to what extent these authorities are applicable to this case, as there appears to be a more serious objection to the allowance of any part of this account. The account filed and verified by the administrator admits actual payments thereon, stating the date and amount of such payments, respectively, aggregating the sum of $195.45. Such admission cannot be overlooked or disregarded in this matter, although there was no other evidence of payment presented on the trial. Such account is in the nature of a pleading. It is part of the records of the case. It concedes payments to substantially the full amount of the claim established, and there is no authority for holding that such payments should be applied upon that portion of the account which the administrator, in consequence of his disability as a witness, or for other reasons, is unable to establish. But it is urged by the administrator that contestants cannot avail themselves of the admission of payment in the account without coupling such admission with the allegation of indebtedness therein, taking it all together; that we are not permitted to select from the account filed a portion thereof, unfavorable to, and militating against, the administrator, and disregard the other portion in his favor. However much force there may be to these suggestions, the courts have held directly to the contrary. White v. Smith, 46 N. Y. 418.

A decree will be entered in conformity with the conclusions above stated.

In re HOWARD'S ESTATE.

(3 Misc. Rep. 170.)

(Surrogate's Court, Cattaraugus County, Filed March, 1893.)

1. CONSTRUCTION OF WILL-ORIGINAL gift.

Testator directed that the residue of his real estate should, upon the decease of his wife, to whom he had given the income thereof for life, descend (inter alia) "to my sisters and their heirs and assigns, and to the children of my deceased brother and their heirs and assigns. The children of any of my sisters or my brother are only to receive the same share that my brother or sisters would receive if they were living at the decease of my said wife." A sister of testator had died before the execution of the will, leaving a son whom testator had no reason to disinherit. Held, that such son was entitled to take the share his mother would have received had she survived testator's widow, not by way of substitution, but as a substantive independent original gift.

2. SAME-LAPSED LEGACY-RESIDUE.

Such will directed payment of the income to the widow for life or until her remarriage, and in the latter event she was to receive only one-half the income. The widow remarried, and thereupon the executor paid half the income to the testator's father (to whom testator gave the estate upon his wife's death) for his life, and upon his decease (prior to the wife's death), paid a part of the income to one of the residuary legatees under the father's will. Held, that the moiety of the income which lapsed upon the widow's remarriage became a part of the residue.

3. JUDICIAL SETTLEMENT-RES ADJUDICATA.

As such payments to the father had been allowed on a prior accoun of the executor, the judicial settlement thereof was res adjudicata on the subject.

4. ACCOUNTING-ADVANCEMENT.

The payment to the father's residuary legatee, who was also one of the residuary legatees under testator's will, should be treated as a payment to her upon her distributive share.

5. EXECUTORS-DEATH OF LIFE TENANT.

The executor will not be charged with interest on the funds of the estate after the death of the widow, when conflicting claims, which are