One John Thompson having died intestate the defendant was duly appointed sole administrator of his goods, chattels and credits, qualified and entered upon his duties as such. He was one of the heirs at law and next of kin of the deceased. Something more than a year after such appointment he and the other heirs and next of kin met together for the purpose of settling up and distributing the estate. At that time the defendant kept back from the distribution the sum of $600 upon the claim that it might be required to pay an inheritance tax. This was consented to by the. plaintiff and other next of kin upon the express promise of the defendant that in ease the money was not needed for the purpose mentioned he would pay to each his or her share thereof, being $60, the sum sued for in this action, and thereupon distributed the remainder of the estate. Under this arrangement and in consideration of this promise the plaintiff executed and delivered to the defendant a full release and discharge of “ all moneys due or to become due” from the estate “ or the administrator thereof.”
This paper contained also an express consent that a decree, without an' accounting of the administrator being had and without citation or notice, might be entered in the Surrogate’s Court settling the estate and discharging the administrator. Like papers were executed and delivered to the defendant by the other next of kin. Thereupon the defendant petitioned the surrogate to be released and discharged as administrator, and without notice or *246citation a decree was entered finally settling the accounts of the administrator and releasing. and discharging him “ from all further liability as such administrator.” These facts were found by the jury (the verdict having been for the plaintiff) upon sufficient evidence and under proper instructions. There was no inheritance tax to be paid and none is possible, ,
What was it the parties intended to accomplish by this settlement? Certainly not any continued liability of the administrator as such, for it was at the same time and as part of the same transaction agreed that the defendant should be discharged from all liability as administrator for this money, and a ■ paper was executed fully releasing and discharging him therefrom. Yet he has in his hands sixty dollars of the plaintiff’s money which he promised to pay o yeito her in case it was not used for a certain, specified purpose. It is true that this was a part of the testator’s estate, blit at the time of the settlement it belonged to the plaintiff, and her consent that the defendant retain it and be. discharged as administrator notwithstanding was given only upon his promise to pay it over unless required for the specified purpose. This" promise was not made by him as administrator, because it was understood that liis- accounts as administrator were then and there fully settled, that he was to be at once discharged, upon the consent of all parties, by a final decree of tlie surrogate from all further duties and obligations of his office, the estate deemed fully distributed and his official relation thereto ended. This .money was, therefore, no longer a part of the estate nor in the hands of the defendant as administrator. In what capacity, upon what agreement or understanding then, does he hold it ? Not as administrator, because he is not administrator, nor as part of the estate, because he could rightfully hold that only as. administrator. Moreover, it was clearly contemplated and understood by the parties that his accounts as administrator were then and there settled, a final distribution of the estate then made, and all liability as administrator ended. It seems to me clear that his agreement to pay was made and accepted as his -personal agreement. Upon no other theory can it be reconciled with the terms of the paper, executed by the plaintiff at the same time and as a part of the same transaction by which she acknowledged the receipt of her full distributive share of the estate and consented to the discharge of the *247defendant-from his office. If he should be sued as administrator it would be a sufficient answer that he had been duly discharged from that office and from all liability as administrator upon the consent of the plaintiff. The final decree cannot be opened, because there was neither mistake nor fraud in procuring it. He has sixty dollars of the plaintiff’s money which in equity and good conscience he ought to pay to her. The promise to pay the money in case it was not needed for an inheritance tax was an independent agreement and proof of it did iiot tend to contradict the writing executed by the plaintiff (Chapin v. Dobson, 78 N. Y. 74; Dodge v. Zimmer, 110 id. 43); and his release from all liability as administrator was a sufficient consideration therefor. (Andrews v. Brewster, 124 N. Y. 433.) The defendant repudiates all liability, both personally and as administrator, and unless he is held personally liable upon his promise, the plaintiff is remediless. For thése reasons I think the judgment should be affirmed.
Kellogg, J., concurred.
Judgment and order reversed, and new trial granted, with costs to appellant to abide event.