In re the Final Accounting in Adams' Estate

The testator, after some specific legacies, left the remainder of his property, which is all personal, to Horace J. Moody and Eliza J. MeOlean, and appointed Moody executor. The widow of the testator presented a claim against the estate, amounting to $3,176.36, and on the final accounting of the executor, the validity of this claim has been necessarily investigated, and testimony taken before an auditor.

The claim was based upon a promissory note alleged to have beenmade by the testator for certain moneys received *110by him from- his wife’s separate property, and which note was alleged'to have been seen by witnesses, and to have been in existence shortly before his death. Two persons, Mrs. Hobson and Mr. Ryan, swear that they saw such a note. But the'loss of the note is not proven. It may still be in existence. Parol proof cannot be received as to its contents, while its non-production is not accounted for. ■ -

Even, however, if the claimant could prove the nóte by this testimony, she has not proved it, for the amount of the ‘note is not remembered by Mrs. Hobson; and Ryan does not prove the handwriting of the paper he saw. The claim' must be rejected. There is not such evidence as would authorize the Surrogate to declare the testator’s estate responsible for separate property of the wife, taken into his possession in his lifetime, which would be the only ground upon which such a claim, if proven, cóuld be maintained. ' ' • : .

The widow, however, does not appear to have had her $150 worth of property and household articles set' "apart, as provided by statute, and the executor must be charged with this in his account. A bill of $181.65, rendered by him against the .estate, for “ moneys advanced by him to the testator during his last sickness,” is only supported by his own affidavit, which is not evidence. This amount must also be disallowed the executor.