Plaintiff was a sister of Patrick Tighe. He died in Onondaga ■county, and his will was duly probated andTetters testamentary were issued to the defendant, and after the defendant had advertised for •claims against Patrick’s estate the plaintiff presented a claim for' $600. The executor rejected the claim and entered into a stipulation, pursuant to section 2718 of the Code of Civil Procedure, refer- • ring the claim to the referee named to hear and determine.
Prior to July, 1892, Michael Tighe, father of the plaintiff and of the testator, executed a real estate mortgage upon property in the Province of Ontario, and in July there remained in arrears upon that mortgage something like $1,000 of principal and $212 interest.
Plaintiff met the deceased at her father’s house in Canada in July, 1892, and she had with her, at that time, $600 in currency,
' The vital question involved in the case was whether there was a loan by the plaintiff to her brother Patrick on the occasion of the adjustment with McNab. , In behalf of the plaintiff evidence is given tending to show that she loaned the $600 to Patrick; whereas,. there is some evidence tending to show that, instead of its being a loan to Patrick, she joined Avith Patrick, her brother, in con- - • tributing the money for the benefit of the father to raise the mortgage from the father’s estate. There is a. very severe conflict in the evidence. The plaintiff produced several Avitnesses who testi- • fled to the admissions of Patrick, which, if believed to the full extent of the language used by the Avitnesses, Avould induce the-belief that there was a loan, instead of an advance in aid' of her ■ father in retiring the mortgage from his premises.
The referee saw the Avitnesses and heard their testimony and had ' before him all the circumstances relating to the question of fact,. and presumably was in a better situation than Ave are to determine whether the witnesses avIio testified to the alleged admissions of the - deceased were reliable or not. (McCabe v. Greene, 45 N. Y. Supp. 724.) He has, upon all the facts disclosed at the hearing, and upon all the testimony deli Am fed, determined the vital question of fact adverse to the plaintiff. His findings are, viz.: “ That said sum of' money Avas delivered to the testator;to be used, and was used, in paying off a mortgage on the farm of Michael Tighe, the father of both plaintiff and testator. That the said sum was not delivered by claimant to or received by said deceased as a loan or • ad Alance,. but to be used on behalf of the claimant in paying off said mortgage.”
In quite an extensive opinion delivered by the referee he states ■ properly the rules of law applicable to admissions, and-in considering the evidence of such admissions he applies the principle laid down in the following cases: Law v. Merrills (6 Wend. 268); Van Slooten v. Wheeler (140 N. Y. 624).
In Roosa v. Smith (17 Hun, 138) the rule was laid down which has been found quite satisfactory in respect to the report of a-referee upon conflicting evidence in a case somewhat similar to-the one now under consideration. Applying the rule there laid down we ought not to disturb the referee’s report. That rule has been followed in Teeter v. Teeter (47 N. Y. St. Repr. 580); Stanley v. National Union Bank (41 Hun, 640; S. C. affd., 115 N. Y. 122); Sackett v. Thomas (38 N. Y. Supp. 608 ; 4 App. Div. 448).
It was the duty-of the referee to scrutinize closely the witnesses-who sought to establish a claim against an estate, especially as this claim was not supported by any written evidence, and'especially as-it was somewhat .exceptional and unreasonable that the deceased should borrow $600 from his sister without giving any written evidence or voucher therefor:
It was the duty of the referee to require satisfactory evidence of the existence of the claim before allowing the same against the estate. (Kearney v. McKeon, 85 N. Y. 139 ; Rowland v. Howard, 75 Hun, 1; Matter of Van Slooten, 140 N. Y. 624.) In the latter case it was said : “ The courts' should see to it that such estates are fairly protected against unfounded and rapacious raids.” The doc-. trine of that case was followed by this court in Yates v. Root (4 App. Div. 439).
We have looked at the exceptions taken during the progress of the trial with some care, and we do not find that any of them present any error which warrants us in interfering with the report of the referee.
All concurred, except Follett, J., not sitting/
Judgment affirmed, with costs.