The record before the referee was somewhat informal, but I think that his general conclusion is justifiable and not inconsistent with justice. The exceptions to the referee’s report bring up for consideration the correctness of his findings upon the questions presented by the objections to the account of the executor. These so-called objections were not in reality objections to the account, because the payments objected to had not been made by the executor; they were rather objections to the contemplated payment by the executor of claims against the estate. The legatees contend that' the executor should not pay Mary E. Joyce a legacy of $500 given to her in the will of the testator, and they also object to the allowance of her claim against the estate for $1,650. They contend that Mary E. Joyce is not entitled to the legacy because since the death of the testator she has obtained and still retains possession of the sum of $500, which was part of decedent’s estate at the time of his death. Therefore the questions presented to the referee for determination were, first, did Mary E. Joyce receive $500 which at the date of decedent’s death constituted a part of his estate ? second, should her claim against the estate for the sum of $1,650 be allowed by the executor ?
The decedent died on May 7, 3912. Prior to his death he Fad an account in the Harlem Savings Bank and an account with Clark Brothers, bankers. On May 8, 1912, Mary E. Joyce presented to Clark Brothers a check drawn on them for $300, dated April 6, 1912, signed by the testator and payable to her. The amount of the check was paid to her. On May 9, 1912, she presented to the Harlem Savings Bank a check drawn on that bank for $200, signed by the testator and payable to bearer. This check was indorsed by Mary E. Joyce and paid by the bank. The amount of each of these checks was charged by the respective banks on which they were drawn to the •account of the testator. The referee found there was no evidence *538that the testator gave these checks to Mary E. Joyce or that there was any consideration for the checks and that the money therefore belonged to the estate of the testator, and that the executor should set off the legacy of $500 given by the testator to Mary E. Joyce against the claim of the estate against her for the amount of the two checks.
Eo question is raised in this proceeding as to the right of the banks to pay fhe checks, and no evidence .was introduced to show whether the banks had notice of the death of the testator at the time the checks were presented for payment. In the absence-of objections 'by the legatees it will be presumed that the executor’s failure to proceed against the banks was due to-the fact that the banks had no knowledge of the death of the testator at the time the checks were paid, in which case no recovery could be had against them. (Glennan v. Rochester Trust & S. D. Co., 209 N. Y. 12.) The giving of a check does not operate to transfer the amount therein mentioned from the depositor to the holder of the. check until it has been accepted by the bank. (Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 87; Attorney-General v. Continental Life Ins. Co., 71 id. 325; Risley v. Phenix Bank, 83 id. 318.) As the checks were not presented to the banks by Mary E. Joyce until after the death of the testator there was no acceptance of the checks during his life and therefore no valid assignment of the funds represented by them.
But while the banks, in the absence of notice of the death of the testator, would be protected in making payments to IJary E. Joyce as holder and payee of the checks, her authority to-draw the money was revoked by the death of the testator. (Fordred v. Seamen’s Sav. Bank, 10 Abb. Pr. [N. S.] 425 ; Long v. Thayer, 150 U. S. 520.) She therefore had no authority to draw the money after the death of the testator; it constituted a part of testator’s estate, and; the fact that the banks paid it to Mary E. Joyce did' not confer upon her any right to-*539its possession. If she had not cashed the checks, but had filed a claim against the estate for the amount represented by them, she would be entitled to recover unless the executor could show that they were not given for a valuable consideration. But in the proceeding before the referee she not only failed to put the checks in evidence, but she refused to admit that the checks were drawn by the testator or that they were paid to her. The evidence submitted by the obj eetiug legatees was, in my opinion, sufficient to show that the checks bore the signature of the testator and that they • were indorsed by Mary E. Joyce, the claimant, and paid to her; that the testator had on deposit with the Harlem Savings Bank at the time of his death more than $200 and with Clark Brothers more than $300, and that subsequent to his death the sums of $200 and $300 respectively were paid by the banks to Mary E. Joyce as the holder and payee of certain checks drawn by the testator prior to his death. This proof established their prima facie case. It was then incumbent upon Mary E. Joyce to put the checks in evidence for the purpose of proving her counterclaim and establishing her right to retain the $500 received from the banks. She, however, failed to do this or to offer any proof in support of her claim. She therefore failed to prove her counterclaim against the estate and the referee was correct in holding that the executor may set off the legacy of $500 given to Mary E. Joyce in the will of the testator against the $500 received by her from the banks after his death.
Mary E. Joyce filed a claim against the estate for the sum of $1,650, alleged to be due her on a contract with the testator for nursing him and attending on him. All the parties interested have filed! a consent that the surrogate may pass upor; this claim.
The testator was sick for about a year prior to his death, although he was not confined to his bed until about two'weeks before he died. Mary E. Joyce, the claimant, was his niece, *540and he lived in her house and paid her $8.25 per week for room and hoard. A daughter-in-law of the claimant testified to a conversation between the claimant and the testator in which he is alleged to have said that he would pay Mary E. Joyce, the claimant, $25 a week for nursing and! caring for him. This testimony was not corroborated. The provision in the testator’s will which provides for the bequest to Mary E. Joyce reads as follows: “I hereby bequeath to my beloved niece, Mary E. Joyce, the sum of $500 for her faithful attention to me during my illness.” This is some evidence of an intention on the part of the testator to compensate Mary E. Joyce for the care and attention which she bestowed upon him by giving her a legacy of $500. I agree with the learned referee that the claimant has not proved her case by that preponderance of evidence which the law requires when claims based upon a parol contract with the decedent are sought to be enforced against his estate. (Rosseau v. Rouss, 180 N. Y. 116; Roberge v. Bonner, 185 id. 265; Holt v. Tuite, 188 id. 17.)
The learned referee’s conclusion of law Ho. 1 should read as follows: That the legacy of $500 given by the testator to Mary E. Joyce should be set off against the $500 obtained by her on his checks after his death.
As modified the referee’s report is confirmed. Settle decree and tax costs on notice. ‘
Decreed accordingly.