(concurring). It is apparent from the findings of the surrogate that he placed no reliance on the testimony of the witness Mary Hunter as to the admission of William H. Ryalls that “he had already realized $15,000” from the estate of Elizabeth Haney, deceased. Had he credited the statement of that witness, his findings of fact would have been different from those actually made. I think the surrogate was justified in disbelieving the statement of the witness. All the other testimony in the case tends to show that she was mistaken. The surrogate, therefore, in finding that Elizabeth Haney, at the time of her death, was possessed of $8,392.47 of property which came to the hands of William H. Ryalls as her executor, must have based such finding principally upon the testimony of William F. Lighthall, the agent, of said Elizabeth Haney, showing the payment to her of the sums mentioned in Lighthall’s account during the four or five years prior to her death. The surrogate assumed that the sums of money so paid to Mrs. Haney by Lighthall during the time in question, or the proceeds thereof, remained in her possession at the time of her death, and were received by Ryalls as her executor; and that the evidence of the receipt by Haney from Lighthall of the property in question, and the presumption that said property continued in her possession at the time of her death, called on the administratrix of William H. Ryalls to account therefor. I think that the surrogate, in so holding, erred, for the reasons stated by Mayham, P. J., in Re Ryalls, 74 Hun, 205, 26 N. Y. Supp. 815.
It is to be presumed from the evidence in the case that Mrs. Haney deposited the greater portion of the various sums received by her from Lighthall in the Union Savings Bank at Saratoga Springs. All the sums so deposited by her, except a small balance, were *457drawn out by her, during her lifetime, by checks. No proof was given on the trial below that the money so drawn out by Mrs. Haney from the Union Savings Bank ever came into the possession of William H. Byalls, or the proceeds thereof, no evidence was given whatever as to the disposition of the greater part of the money so drawn by Mrs. Haney from said bank. I think it was mere speculation to assume that Byalls received the money so drawn out by deceased, in the absence of all proof showing that it came into his hands. In _fhe absence of other evidence showing that the property in question was received by Byalls, I think the surrogate should have charged his estate only with the amount admitted by William H. Byalls in his account made and filed in 1881, together with the value of the stock of the Provident Loan Company. For the reasons above stated, and also on account of the reception in evidence by the surrogate of the memorandum referred to in the opinion of Mayham, P. J. (74 Hun, 209, 26 N. T. Supp. 815), I think there should be a new trial before the surrogate. I have not considered the question as to whether the will of Elizabeth Haney, deceased, gave to her son a mere life estate. in the property in question, or the use of such property, with a right to expend the principal thereof. In the view I have taken of the case, it is unnecessary to pass upon that question.