In re the Judicial Settlement of the Account of Proceedings of Penndorf

The evidence was insufficient to establish a gift to Mrs. Penndorf of the check for $10,175 received by the testatrix in payment of the Harris mortgage. The refusal of the referee to charge the executrix with the $1,500 drawn from the Harlem Savings Bank and the $478.70 remaining on deposit to the credit of the account in that bank was against the weight of evidence, as was likewise his failure to charge the executrix with the $1,451.31 drawn from the .German Savings Bank and invested in the Messerschmidt mortgage, all of the moneys to make up which seem to have belonged to the deceased. The failure of the referee to charge the executrix with $1,060.45, the amount of the deposit in the Harlem Savings Bank, was likewise against the weight of evidence, and the same is true of the $1,058.60, the amount of the deposit in the Bowery Savings Bank. We think that it is fairly to be inferred from the evidence that the deceased commonly used Mrs. Penndorf as the medium through which *842she transacted her business, including her deposits of money "with banks and her investments. The evidence also indicates that there may have been a confusion of moneys which were the separate property of Mrs. Penndorf, and which were not derived from the deceased, with moneys of the latter, but to what extent it is impossible to say. It niay also be inferred that a portion of the $10,175 check, and perhaps of other sums which came into the hands of Mrs. Penndorf, were reinvested by her in some mortgage or other security, thus creating an apparent duplication of items. The referee improperly admitted much evidence of a hearsay and otherwise improper nature. A new trial will afford an opportunity to bring out the facts with greater clearness and to avoid the admission of palpably incompetent testimony. For these reasons the decree is reversed, with costs to abide event, the order of reference vacated and the matter referred to a new referee to be appointed by this court. Present — Ingraham, P. J.. McLaughlin, Laughlin, Clarke and Hotchkiss, JJ. Decree reversed, with costs to abide event, order of reference vacated and matter referred to a new referee to be appointed by this court. Order to be settled on notice.