I see no reason for changing the conclusion reached in this case when it was before us on the former argument, as reported in 74 Hun, 205,26 N. Y. Supp. 815.
1. The liability of William H. Ryalls, as executor of the will of his mother, Elizabeth Haney, could only be determined by an examination of her will. The provisions of that will were therefore before the court for a judicial determination, for the purpose of ascertaining whether his estate was chargeable with all of her estate which came into his hands, or with so much of the same only as remained in his hands at the time of his death. By the terms of the will he was permitted to use the estate for his own benefit, and the amount not so used was bequeathed to the contestants.
2. The burden was on the contestants of showing by competent *456proof the amount of the estate of Elizabeth Haney remaining in his hands at the time of his death, and his administratrix was chargeable in this accounting for that amount only; and the contestants failed to show the sum left over at the time of his death.
We still adhere to our views as expressed on the former hearing in reference to the error committed by the surrogate in the receipt of improper evidence offered by contestants, and received by the surrogate under the exceptions of the appellant; also to our views expressed as to the effect of the proof tending to show the amount of property owned by Elizabeth Haney some years previous to her death, and hold that that proof did not cast upon the appellant the onus of proving the negative proposition,—that she did not die the owner and possessor of that amount, or that that amount did not come to the hands of her executor. We therefore reiterate our former conclusion that the surrogate’s decree is erroneous, and must be set aside, and a new trial or hearing be had before the surrogate, under section 2587 of the Code of Civil Procedure, with cost of this. appeal against the contestants, to be paid out of their shares of the estate of Elizabeth Haney, bequeathed to them in and by her will.