In re the Judicial Settlement of the Accounts of Cushman

E. Watts Cushman appears to have been a prosperous attorney residing and having offices in the village of Hamilton, N. Y. He died on the 18th day of July, 1912, leaving a last will and testament. Addison J. Cushman, by the terms of said will, became the sole executor of the estate of said E. *129Watts Cushman, and as such executor is the leading appellant before this court. Mollie E. Hopkins, subsequent to the death of the testator, put in various claims against the estate, among them one for the sum of $10,000. This claim was submitted in the form of a bill in which it was alleged that the estate of E. W. Cushman was indebted to Mollie E. Hopkins in the sum of $10,000, and, by way of explanation, it was said that “this amount is represented by a promissory note for said sum of ten thousand dollars, dated June 18th, 1909, made, executed and delivered, for value, to claimant, by the decedent, in his lifetime, payable one year after death, which note is in the possession, as claimant is informed and verily believes, of A. J. Cushman, the executor of the estate of said decedent; that claimant has been unable, after due diligence, to obtain possession of said note, and that the same and no part thereof has been paid.” This claim was duly verified and was subsequently, by agreement of 1913 as then provided by statute (Code Civ. Proc. §§ 1822, 2718, 2743), contested before the surrogate upon the final accounting, resulting in a decree directing the payment of such claim. The executor and others appeal to this court from the decree in so far as it directs the payment of this claim and so far as it awards costs and disbursements to this claimant.

It was stipulated upon the trial that all the evidence and testimony offered and received for and against any claim of the claimant should be considered, as far as applicable, as evidence in each other claim, and upon this appeal we are not asked to consider any ruling upon the admission or rejection of evidence, except as to a ruling upon the testimony of the executor, which is not important to be considered in this relation. It thus appears that there were not only no pleadings in this case, other than the bill rendered by the claimant, but that there was an agreement among the parties that all evidence properly received in support of any of the several claims, or against them, should be taken into consideration in determining any one of such claims. That is, the whole subject of the various claims was thrown open to investigation, under an agreement that the court might apply it in determining each *130of the several claims, so that it cannot be fairly said that the pleadings in this particular claim were confined to the issue of whether there was a promissory note for $10,000, or whether the estate owed the claimant that amount of money. Pleadings in Surrogate’s Court were not required to be in writing at the time of this litigation (Matter of Sheldon, 158 App. Div. 843, 848), and even if they were it is always competent for litigants to waive rules of law or statutory provisions made in their favor where no considerations of public policy are involved, and having once consented to forego their rights they cannot afterward assert them. (Mayor, etc., v. Manhattan R. Co., 143 N. Y. 1, 26, and authorities there cited.) Here there was a stipulation that all evidence properly in the case in support of any one of the claims might be used in connection with all of them; it was in effect an agreement to abide by the evidence produced, without any particular reference to the claim or claims, and the technical question of whether the claim for $10,000 was evidenced by a promissory note which had been destroyed, or whether it rested on an express or implied contract to pay, became of only incidental importance, and the question now urged upon the consideration of this court upon the permission of the learned surrogate to amend “to conform to this decision” is not properly before us for determination.

The learned surrogate, in what is denominated a “ decision,” carefully reviews the facts and the law to the extent _ of thirty-seven pages, and then says: “I, therefore, in view of all the circumstances, hold that the estate of E. Watts Cushman is indebted to Mollie E. Hopkins, the claimant, in the sum of $10,000 with interest thereon from July 18, 1913. I base this, not directly upon the note, but upon the agreement I have mentioned, and the claim may be amended to conform to this decision and the proofs.” This, it seems to us, is entirely in harmony with the stipulation and the course of the trial. The evidence properly in the case is sufficient to establish that the testator some two or three years before his death, as an inducement to his stenographer to remain with him so long as he lived, or practiced law, promised to aid her in the purchase of a house, and to give her his note for $10,000, payable after his death, together with such moneys in the meantime as she *131should require in addition to sums which she earned from other lawyers. The evidence established that the testator did help' the claimant, his stenographer and confidential clerk, to purchase a house; that he actually paid $1,000 upon the purchase price of a $2,000 place, and four witnesses, having no apparent interest in the matter, and all of them known to the surrogate who tried the case, testified in effect that the testator told them that he had an agreement with the claimant that if she would give over her intention of leaving Hamilton and remain with him he would give her the help and the note, and the surrogate has held that this was in fact agreed to and that the claimant had performed her part of the agreement.

The careful analysis of the evidence, in the light of all the authorities, and the evident purpose of the surrogate to act judicially in the premises, are sufficient to convince this court that the real merits of this controversy have been reached and mastered, and it would not be profitable to go over the matter again. Just what became of the promissory note, which the testator admitted had been made and delivered to the claimant, does not appear, but the equivocal testimony of the executor, who alone had access to the safe in which the testator said the note was contained, is, of itself, enough to give color to the claimant’s contention that it was destroyed either by the testator or his brother, the executor. But, as the case was tried, it is not at all material what became of the note; the fact that the testator, for a consideration furnished by the claimant, had agreed to pay her $10,000 upon his death, is enough to sustain the decree, and beyond that no one need have any concern.

The decree should be affirmed, with costs.

Decree unanimously affirmed, with costs..