Matter of Teyn , 2 Redf. 306 ( 1876 )

The Surrogate,

I am of opinion that the finding of the auditor disallowing the claims is right, and should be sustained.

To establish such a charge on a verbal request, or recommendation of a testator would, it seems to me, open the door to very great abuse, and provide substantially that the force and effect of a will made according to law might be nullified by verbal instructions, or recommendation, thereafter made, and I am not willing to sanction any such dangerous interference with the deliberate will of the testator.

As to the alleged claim for board and support, of the daughter, by Mr. Bergmann, the fact that she continued in the family as a member thereof, creates no implication of an obligation to pay. (See Williams v. Hutchinson, 3 N. Y., 312; Dye v. Kerr, 15 Barb., 444; Sharp v. Cropsey, 11 Id., 224; Conger v. Van Aernum, 43 Id., 602; Wilcox v. Wilcox, 48 Id., 327; Robinson v. Cushman, 2 Denio, 149.)

A careful reading of the testimony upon the subject of the alleged agreement of the executors to pay for the daughter’s support, does not, in my opinion warrant me in finding, contrary to the conclusion of the auditor, that there was any such agreement; and it is clear to my mind that the question was not properly before the auditor to be determined, inasmuch as the account does not seem to have been regularly presented, and vouched for. If the question of liability of this estate is to be adjudicated upon, it should be upon the usual reference, where it would appear to be, to a considerable extent, barred by the statute of limitations, for if such an agreement should be found, the law would imply an agreement to pay at least yearly, and the statute of limitations would begin to run, on the close of each year. (Davis v. Gorton, 16 N. Y., 255.)

As to the allegation that the executors and guardians have invested the funds of their ward in their own business, under the consent of their ward, it seems to be sufficient to answer that she, while an infant, could not so consent; that such use of trust funds, is in plain violation of the law, and the duty of trustees.

But neither the auditor nor this court can properly pass upon this question, until it shall be raised on a decree requiring the trustees to pay over to their ward, the amount found due by this accounting.

The report of the auditor in the particulars above suggested is therefore confirmed.

Order accordingly.