This action was brought to recover the sum of sixty dollars, which, it is claimed, the defendant had promised and agreed to pay to the plaintiff. It appears that John Thompson died at the town of Delhi, Delaware county, N.Y., on the third day of April, 1892, leaving nine children and a grandchild him surviving, as his next of kin. The defendant, one of his sons, was appointed administrator of the estate, and as such administrator had collected the assets and paid the debts. Thereupon all of the children of the decedent met together and the administrator stated to them that he wanted to settle with them and have his discharge as the administrator of the estate entered in the office of the surrogate of the county; and for that purpose he wanted each to execute a release and settlement in full, waiving a formal judicial settlement before the surrogate. They then figured up the amount of the estate in his hands, and divided the same between them and then, as testified by a number of witnesses, he stated that he had taken out the sum of six hundred dollars with which to pay the transfer tax; that in case no transfer tax was assessed against the estate he would pay to each of the heirs sixty dollars, that being their proportion. Thereupon, the plaintiff, with others, executed the release in which they consented that the same might be filed with the surrogate and a decree entered thereon finally discharging the defendant as administrator. It further appeared that no transfer tax was assessed against the estate. The plaintiff, after demand and refusal to pay by the defendant, brought this action to recover her proportionate share of the money so taken by him from the assets of the estate to pay such tax. Among the defenses interposed was *Page 314 the discharge and settlement in full, as shown by the release, its entry in the office of the surrogate of the county, and the decree made by the surrogate thereon finally discharging him as administrator of the estate.
We think that, under the evidence, the jury might have found that the six hundred dollars was taken out of the assets of the estate and held by him individually, for the purpose of paying the transfer tax, if any was assessed, against the estate and that his promise to pay each of the ten heirs one-tenth thereof, in case such tax was not assessed, was the personal promise of himself, and not as administrator, and that the execution of the release for his discharge as administrator furnished a good consideration for such promise. He was about asking for his discharge as administrator; he had taken out of the estate the six hundred dollars and had stated that he could pay the tax just as well after his discharge as before. Under our view the inference which the jury might draw from these facts would permit the finding that his promise to pay in case the tax was not assessed was his individual promise and not that of an administrator. There is no attempt here to vary the terms of the written release, for the claim is based upon his personal promise and not that of an administrator.
The opinion of FURSMAN, J., in the Appellate Division upon the first review of this case is fully in accord with our views and we refer thereto for a more detailed statement of the facts in the case.
The judgment should be reversed and a new trial granted, with costs to abide the event.
CULLEN, Ch. J., GRAY, O'BRIEN, BARTLETT, VANN and WERNER, JJ., concur.
Judgment reversed, etc. *Page 315