(91 Hun, 89.)

#### WINNE v. HILLS.

(Supreme Court, General Term, Third Department.

December 3, 1895.)

1. Documentary Evidence—Book Entries.

On the trial of a claim against an estate for boarding decedent, book entries made by claimant’s wife at his request, but not purporting to be original entries, nor made in the presence of decedent, are incompetent. 3. Harmless Error—Admission of Incompetent Evidence.

Facts shown by incompetent evidence admitted by a referee, who reports adversely to the party introducing the same, cannot be relied on to secure a reversal of the judgment entered on such report.

3. Claims abainst Decedents—Nature of Proof.

Claims against estates of deceased persons will be upheld only on clear and satisfactory evidence.

4. Same—Costs.

In a proceeding to determine a disputed claim against the estate of a decedent, which is referred by agreement, under the statute, the executor or administrator, if successful in resisting the demand, is entitled to costs. Adams v. Clin, 29 N. Y. Supp. 131, 78 Hun, 309, followed.

Appeal from judgment on report of referee.

Claim by Charles Winne against Russell A. Hills, as administrator of Charles A. Hills, deceased. From a judgment dismissing the claim, claimant appeals.

Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Nathaniel Niles (H. A. Peckham, of counsel), for appellant.

John A. Delehanty, for respondent.

MAYHAM, P. J.

Charles A. Winne, claimant, was a brother-in-law of the deceased, Charles A. Hills, and presented a claim against the estate of Charles A. Hills for $2,300 to his administrator, claiming it to be a balance due from the deceased for boarding deceased and his wife from July 1, 1884, to May 1, 1890, for which claim he charged at the rate of $20 per week. That claim was disputed by the administrator by a notice in writing, in which the administrator offered to refer the disputed claim, under the statute; and thereupon a stipulation in writing was entered into, signed by the attorneys of the respective parties, agreeing to refer the same to James A. Lawson, as referee, to hear and determine, which reference was *684approved by the surrogate, and an order duly entered in this court referring the same, pursuant to such stipulation. The case was heard upon the proofs* before the referee, who made and filed his report, in and by which he held and decided that defendant, Bus-sell A. Hills, as administrator, was entitled to judgment against the claimant, dismissing the claim, with costs. Upon this report judgment was entered in the supreme court in favor of the administrator, and against the claim of Charles Winne, for $178.69, costs and disbursements, from which this appeal is taken.

The case, in brief, discloses that the complainant, Charles Winne, and his wife, occupied premises owned by his wife, situate in the city of Albany, and that Charles A. Hills and his wife lived in the house, occupying rooms therein; that the two families were apparently living together as a family from July, 1884, to May, 1890; that the wife of the claimant and that of the decedent were sisters. No claim for board, as appears from the evidence, was ever made by the claimant against the decedent during his lifetime, and the claim appears to .have been first presented on the 20th of October, 1894. The. wife of the deceased died prior to the death of the wife of the plaintiff, who appears to have died April 25, 1893. So that at the time of the presentation of this claim none of the parties to the original transaction were living, except the claimant. No agreement between the claimant and the decedent or his wife was proved, either for the occupancy of the premises occupied by them or for their board. There was evidence on the part of the claimant tending to prove the time that the deceased and his wife lived in the family with the claimant, and that the title to the house was in claimant’s wife, and that claimant contributed and paid for provisions used in the family, and also tending to prove the price of board and accommodation, such as deceased and his wife had during the time, or a portion of the time, they resided with the claimant.

During the progress of the trial, claimant presented and offered in evidence an exhibit of accounts proved to have been made by claimant’s wife at the request of claimant, which consisted of dates and amounts set opposite, and which was claimed to represent, payments made by deceased either to claimant or his wife, from September, 1884, to February, 1890. This was objected to by the defendant, on the ground that it was not evidence against the defendant, as it did not purport to be original entries made by the wife, and was not made in the presence of deceased. This objection was overruled, and the document received, to which an exception was taken. This was clearly incompetent evidence; but it is insisted by the claimant that, as the report was adverse to him, the objection and exception were not available to the defendant, and that, the evidence having been received by the referee, it was for the purposes of this action, on apneal, competent to prove the existence of an account between the plaintiff and deceased. If it wras used for any purpose in this action, it was incompetent, and the proof which it furnished cannot now be relied upon for the purpose of reversing this judgment.

*685We think the question presented here differs from the question raised in Flora v. Garbean, 38 N. Y. Ill; and while the defendant, of course, succeeding in the action, can have no benefit from his exception taken from the receipt of this, it cannot be used as a fact to establish the plaintiff’s right of recovery for the purpose of setting aside the judgment rendered upon the report adverse to him.

The case also discloses that, during the time the plaintiff and deceased resided together in the manner indicated, the deceased paid and advanced in all $6,523.65 in taxes, between July, 1884, and May, 1890, on the premises owned by the plaintiff’s wife and occupied by the parties, as indicated in this case; being an average annual payment of about $1,182, and largely in excess of any amount which the claimant would be entitled to, if allowed- for the whole time at the rate of $20 per week, for the board of deceased and his wife.

On the whole case, it would seem that no just claim was established by the evidence against the estate of the decedent, and there were, at least, suspicious circumstances attending the presentation of this claim so long after its alleged accruing; and the referee, under the circumstances, we think, was justified in holding that there was nothing due from the estate of the deceased to the claimant at the time the claim was presented to the administrator, or at the time of the trial of this action.

It seems to be well settled that claims against the estate of deceased persons, in order to have them upheld, must be clearly proved by competent evidence, free from any just or well-grounded suspicion of their validity.

In Re Van Slooten v. Wheeler, 140 N. Y. 163, 35 N. E. 583, the court says:

> “Public policy requires that claims against the estate of the dead should be established by very satisfactory evidence, and that courts should see to it that such estates are clearly and properly protected against unfounded and rapacious raids.”

And to the same effect are Ulrich v. Ulrich (Super. N. Y.) 17 N. Y. Supp. 721; Kearney v. McKeon, 85 N. Y. 139, 140; Ellis v. Filon (Sup.) 33 N. Y. Supp. 140.

We think the report of the referee in this case was clearly right, and that the judgment must be affirmed.

The remaining question is as to the allowance of costs. While doubt has existed as to the propriety of allowing costs beyond the actual disbursements against executors and administrators who have unsuccessfully resisted claims referred under the statute, it seems now to be well settled, upon authority, under section 2718 of the Code of Civil Procedure, that the proceeding is to be treated after reference as an action in the supreme court, which would clearly imply that the successful party is entitled to costs the same as in an action in that court.

In Adams v. Olin, 78 Hun, 309, 29 N. Y. Supp. 131, it was held that, after reference, all subsequent proceedings should be treated as an action; and the defendant executor, if successful in resisting *686the claim made against the estate, is entitled, as matter of right, to costs; and Van Brunt, J., in delivering the opinion in this case, uses this language:

> “Such being the case, the defendants were entitled, as matter of right, to costs, upon their successful defense of the claim presented against the estate which they represent. We think that it was the intention of the legislature, in reference to these proceedings, to make them parallel to those which take place in an action after a reference has been ordered.”

The judge further holds that the only discretion vested in a referee in proceedings of this character is as to allowing costs against an executor or administrator who has been unsuccessful in a defense.

The costs and disbursements which appear in this record as, the cost tax have been taxed in conformity with the rule in the case last cited.

Judgment must be affirmed, with costs. All concur.