In re Van Volkenburgh's Adm'x

• Decision Date: 10 June 1930
• Citation: 254 N.Y. 139,172 N.E. 269
• Parties: In re VAN VOLKENBURGH'S ADM'X. Appeal of HUNTINGTON.
• Court: New York Court of Appeals Court of Appeals

254 N.Y. 139

172 N.E. 269

In re VAN VOLKENBURGH'S ADM'X.

Appeal of HUNTINGTON.

Court of Appeals of New York.

June 10, 1930.

In the matter of the judicial settlement of the account of proceedings of Florence Baiz Van Volkenburgh, as administratrix, etc., of the estate of Thomas S. Van Volkenburgh, deceased. From an order of the Appellate Division (226 App. Div. 10, 233 N. Y. S. 457), affirming a decree of the Surrogate's Court (128 Misc. Rep. 819, 221 N. Y. S. 309), settling the account, Susie Van V. Huntington appeals.

Affirmed.Appeal from Supreme Court, Appellate Division, First Department.

J. Ard Haughwout and Arthur G. H. Power, Jr., both of New York City, for appellant.

Michael H. Cardozo, Jr., of New York City, for respondent.

O'BRIEN, J.

Respondent, the widow of Thomas S. Van Volkenburgh, was appointed administratrix of his estate and she filed her account. Appellant, who is the daughter of decedent by a former marriage and his sole heir and next of kin, obtained an order, pursuant to section 263 of the Surrogate's Court Act, whereby the administratrix was directed to appear before the surrogate for examination. By virtue of that order, the administratrix was examined at length in respect to her personal possession of many bonds and certificates of stock over which she asserted individual ownership and the circumstances under which she claimed to have received them as gifts from her husband. The minutes of that examination were filed in the Surrogate's office. Appellant later filed objections to the account, and the issues arising on such objections were sent to a referee who decided substantially all of them in respondent's favor. With very slight modification his report was confirmed and the order of confirmation has been affirmed by a divided Appellate Division.

On the hearing before the referee the widow was allowed to give testimony concerning personal transactions between herself and decedent. She testified that all the disputed securities had been given to her by her husband. Unless the door had been opened to the admission of this evidence by appellant's act in producing substantially the same evidence on the examination under section 263 of the Surrogate's Court Act, this testimony before the referee was rendered incompetent by the provisions of section 347 of the Civil Practice Act. The prohibition of this section, however, applies by its restrictive language only to the trial of an action and to a hearing upon the merits of a special proceeding. The rule as to waiver is to be found in this section and not elsewhere (De Laurent v. Townsend, 243 N. Y. 130, 152 N. E. 699), and therefore waiver can occur only on a trial or on a hearing upon the merits. Here there was no trial of an action. Was the examination under section 263 a hearing upon the merits of a special proceeding? If it was, then there was a second hearing upon the merits, for certainly the one before the referee was of such a character. We think that there was only one hearing upon the merits and that that was the one before the referee. The preliminary examination under section 263 consisted merely of an investigation of the conduct of a fiduciary for the purpose of ascertaining the existence of merits upon which objections could be based. The widow was not then examined in her own behalf or interest, but in antagonism to her individual interest by a hostile party who sought to show that as administratrix she had been recreant to her trust. At that time no objections had been filed and consequently there could have been no hearing upon them. There were then no merits to hear. The issues tried by the referee arose upon later objections and the widow's testimony on the previous examination was not given in evidence by appellant. Section 347 does not forbid a preliminary inquisition of a fiduciary in relation to transactions with a decedent, and section 263 expressly authorizes it. Accordingly, the provisions of section 347 were not waived by one who later became a contestant and raised issues which were subsequently heard upon the merits. The widow's testimony on the hearing before the referee was therefore incompetent.

The Surrogate and the majority at the Appellate Division have found, irrespectiveof this incompetent testimony, that the disputed securities were proved as gifts...