I concur with the presiding justice. The referee has found that prior to the death of the testator the widow paid to him $3,000 in cash and transferred a farm, which was accepted at $6,000, for the purchase price- of certain property in the city of Hew York. Of these facts one of the executors had full knowledge. When, after the death of the testator, his widow presented a -claim for this $9,000 against the estate, if he in good faith believed, the claim to . be a valid claim, he was justified in paying it. I think the effect of the evidence is that the executor Watson in good faith believed that this claim was a valid claim, and that the widow was entitled to recover the money and property'that she had delivered to the testator ■ and which he had used in. the purchase of the property. He required, ' however, the claimant to establish the claim by a judicial proceeding against the -éstate, but if he in good faith believed the claim to be a valid one he was not bound to put the estate to the expense of a strenuous litigation in opposition to it, ■ and the claimant having proved her claim to the satisfaction of the referee before whom the claim was brought, I do not think the executors should be charged'with the amount of the judgment that the claim ant obtained and which was subsequently paid by the executors. In view of the fact that money and property had been used by . the testator, whether or not the transfer by the testator of the fee to certain property to the widow was a satisfaction of that claim was a question of doubt that a layman might well- believe would not be an answer to the claim. It séems to me that the moment the fact is proved that the claimant actually transferred money and property to the testator to the amount óf her claim and that the claim is, therefore, based upon an actual .payment of thé money and property to the testator., to justify the surrogate in charging the executors with the amount of the judgment it was -necessary to establish affirmatively fraud or collusion which, it seems to me, this evidence fails to establish.
O’Brien, P. J., concurred.
Decree affirmed, with costs.