Statement of case.

ing C.'s interest in the estate he was entitled to a credit for his share of the sum so charged.

The accounting was not a final one, and it appeared that there was other property to be accounted for. The General Term modified the surrogate's decree by deducting from the amount ascertained, as remaining for distribution on December 31, 1871, costs and counsel fees incurred after that date, and the commissions of the executors thereafter fixed. Held, error; that the account in these respects was properly settled.

(Argued March 23, 1883; decided February 26, 1884.)

THESE were cross appeals from different portions of judg ment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made at the October Term, 1882, which affirmed in part and reversed in part a decree of the surrogate of the county of Livingston upon an accounting of the executors of the will of James S. Wadsworth, deceased.

The case is reported upon a former appeal in 74 N. Y.

539.

The facts so far as material are stated in the opinion.

Wm. W. MacFarland and Wm. Henry Rawle for appellants. The appeal should be heard and decided in the court on the evidence brought up according to the law and practice existing before the adoption of any part of the Code of Civil Procedure. (Vanderheyden v. Reid, 2 Hopk. 408; Clayton v. Wardell, 2 Bradf., introduction to 1st Bradford; Van Wyck v. Alley, id. 522; Schenck v. Dart, 22 N. Y. 420; Robinson v Raynor, 28 id. 494; Clapp v. Fullerton, 34 id. 190; Howland v. Taylor, 53 id. 627; Devin v. Patchin, 26 id. 441.) This court always looks into the evidence to construe a finding and to see whether it has any basis in proof. (Spencer v. Ballou, 18 N. Y. 333; Finch v. Parker, 49 id. 8; 57 id. 642.) The court erred in rejecting the admission of the executors as evidence against them. (3 Greenl. Ev., §§ 277, 282, 234; Daniel Ch. Pr. [3d ed.] 778, 779 and notes; 1 Greenl. Ev., § 194; Duchess of Kingston's Case and notes, 2 Smith's L. C. 424; Robinson v. Smith, 3 Paige, 222; Bacon v. Robinson, 18 How. [U. S.] 485; Hubbell v. Meigs, 50 N. Y. 482; 54Penn.

Statement of case.

St. 164; Story's Eq., § 1275.) If a trustee omits to sell, and mortgages, he is liable for depreciation generally, on the basis of duty to sell when the best sale could have been made. (Story's Eq., § 1061 a; Devaynes v. Robinson, 24 Beav. 86; Stephens' Dig. of the Laws of Ev., 99; Amory v. Delamirie, 1 Smith's L. C. 357; Cotheal v. Talmage, 1 E. D. Smith, 673.) Intrinsic value is not only a proper subject of inquiry in every case relating to real or personal property, but it is absolutely, in every conceivable case, the first and most essential inquiry. (Clark v. Baird, 9 N. Y. 188, 189, 194; Harris v. Panama R. R. Co., 58 id. 660; Scattergood v. Wood, 14 Hun, 269; Clark v. Baird, 9 N. Y. 183; Greenl. Ev. Ch, 3 Starkie Ev. Ch. 1; 1 Greenl. Ev., § 84.) The inquiry must be limited to the market value at or about the time of the conversion, and the market value at or about the situs of the property. (Sedgwick on Damages [6th ed.], 279; Gregory v. McDowell, 5 Wend. 435; Dana v. Fielder, 2 Kern. 40; Dunet v. Burton, 47 N. Y. 175; 2 Lans. 137; Worther v. Wilmot, 30 Vt. 533; Smith v. Griffiths, 3 Hill, 536; Havemeyer v. Cunningham, 35 Barb. 515; Blydenburgh v. Welsh, 1 Bald. 340; Cox v. Ebeland, 65 Penn. St. 221.) Where the rule of damages is not the consideration paid, but the value of the premises at the time of the conveyance, the consideration expressed in the deed is evidence of such value. (1 Sedg. on Measure of Damages [7th ed.], 241; Britton v. Stanley, 4 Whart. 120; Godwin v. Francis, L. R., 5 Com. Pleas, 307; 1 Greenl. on Ev. [13th ed.], § 26, p. 54, n. 6; Wayne on Damages [3d ed.], 174.) The executors being the accounting party, and prima facie chargeable with the highest value of which there is any evidence, must not even leave the evidence as between the auditor's finding and the surrogate's evenly balanced, if they do, the former must prevail. (6 Paige, 583; 4 Edw. Ch. 32.) The exclusion of the answer, and the testimony of the witnesses in the equity case between the New Boston Company and the Pottsville Company was error. (Taylor's Ev., §§ 539-541, 681, 684; Stephen's Dig. of Law and Ev., art. 17.)

Statement of case.

J. B. Adams for Charles W. Wadsworth. The provisions of the chapter "of title to real property by descent," 1 R. S. page 754, sections 23-26, inclusive, apply only to cases of “intestacy." (Thompson v. Carmichael, 3 Sandf. Ch. 120; Camp v. Camp, 25 N. Y. S. C. 217.) In America an advancement, in order to be reckoned toward the distributive share of the child, must have been so intended by the father, and so understood by the child, or at least the former must clearly appear. (3 Redfield in his Law of Wills, p. 429.) The mere proof of the entries in the books of the testator of the items of account against Charles F. are not alone sufficient to establish the fact of an advancement. (Marsh v. Brown, 25 N. Y. S. C. 319.) The maintaining or educating, or the giving of money to a child, without a view to a portion or settlement, shall not be deemed an advancement within the meaning of 2 R. S., p. 98, § 78. (Taylor v. Taylor, 20 Eng. Eq. C. 155.)

Joseph H. Choate for Martin Brimmer, executor, etc. The appeal is necessarily governed by the Code of Civil Procedure, and the court has no power to review the question of fact as to the value of the coal lands and which arises upon conflicting evidence. (Code of Civil Procedure, § 3356; in the matter of Ross, 87 N. Y. 514; Davis v. Clark, id. 623; Marx v. McGlynn, 88 id. 369; Hynes v. McDermott, 91 id. 451.) The auditor's action in the matter was purely advisory. (Estate of McEvoy, 1 Monthly Law Bull. 64; Redfield on Surrogates, 670; 2 R. S. 94, § 64; Westervelt v. Greig, 1 Barb. Ch. 469.) The auditor erred in rejecting the testimony of the witnesses offered by the executor as to the value of the coal lands, they having dealt largely in such lands, although not residents of the neighborhood, being competent as experts. (Smith v. Gugerty, 4 Barb. 614, 625; Hawes v. Ins. Co., 2 Curt. 229, 230; Kearn v. Ins. Co., 40 Mo. 19, 26; McCullum v. Seward, 62 N. Y. 316; Keershaw v. Wright, 115 Mass. 361, 366; Miller v. Smith, 103 id. 470, 475; Brill v. Flagler, 23 Wend. 354; Alfonzo v. U. S., 2 Story, 421, 426; Swan v. County of Middlesex, 101 Mass. 173, 177; Cantling v. R. R. Co., 54

Opinion of the Court, per RAPALLO, J.

Mo. 385, 391; Clark v. Bond, 9 N. Y. 188; Lawton v. Chase, 108 Mass. 238; Brady v. Brady, 8 Gray, 111; Beecher v. Dewston, 13 id. 354; Cornell v. Olean, 105 Mass. 435; Draper v. Saxton, 118 id. 427; Miller v. Smith, 112 id. 470; Buell v. Flagler, 23 Wend. 354; Teerpenny v. Ins. Co., 43 N. Y. 279; Vandine v. Burpee, 13 Metc. 288, 291; Miller v. Smith, 112 Mass. 475.) A consideration stated in a deed, in the absence of all evidence, is presumed, prima facie, to be the actual consideration, but it is always open to parties to show what the actual consideration was, and when that has once been shown the consideration in the deed, and every presumption that rested on it entirely disappears from the case. (Upson v. Badeau, 3 Bradf. 13; Maine v. Haight, 14 Barb. 76; Stackpole v. Robbins, 47 id. 212; Wheeler v. Billings, 38 N. Y. 263; Murray v. Smith, 1 Duer, 412; McCrea v. Purmort, 16 Wend. 460; Witdeck v. Waine, 16 N. Y. 538; Adams v. Hull, 2 Denio, 306.) For their indemnity against their liability for indebtedness to Charles the executors may look to his ultimate share of the principal and income of the estate, and upon the same principle they may look to it as fast as it is received, and to every thing that is received from him and not otherwise applied. (Devaneys v. Noble, 1 Měrivale, 608; Jackson v. Johnson, 74 N. Y. 607; 2 Hun, 500; Webb v. Dickinson, 2 Wend. 64; Allen v. Culver, 3 Denio, 284; Truscott v. King, 6 N. Y. 147; Coleman v. Lansing, 55 Barb. 54.)

RAPALLO, J. In order to ascertain what questions are open on this appeal, it is necessary to refer to the proceedings had prior to the former appeal to this court, and to state what was decided on that appeal. Many of the questions of fact and law involved in the case were then finally determined, and became res judicata, not open for further review.

In December, 1871, the then surviving executors presented their petition to the surrogate of Livingston county for a settlement of their accounts. They filed with the surrogate their accounts to December 31, 1871. These accounts were

Opinion of the Court, per RAPALLO, J.

referred to the Hon. Addison Gardiner as auditor, and on the 24th of September, 1876, the surrogate, on the report of the auditor, made a decree finally settling the accounts to December 31, 1871. By the accounts as thus settled, the executors were ⚫ charged with the amount of the inventory and increase and other receipts, and credited with their payments to creditors and legatees, and for expenses up to that date, leaving a balance in their hands for distribution subject to the payment of their commissions and expenses.

From this decree of the surrogate an appeal was taken to the General Term of the Supreme Court, by Mrs. Adair and Mrs. Rogers, two daughters of the testator, and their respective husbands. No appeal was taken by any other party to the accounting.

The decree was affirmed at General Term, the court adopting the opinion of the auditor, and the contestants thereupon took a further appeal to this court. The grounds of that appeal were, that the auditor and surrogate had erred in the manner of ascertaining the amount with which the executors should be charged for the value of certain coal lands in Pennsylvania which they had disposed of in October, 1864, in a manner not authorized by law. Also that the executors had been erroneously credited with certain specified items of the account, and that they had not been charged with a sufficient sum by reason of advances made to C. F. Wadsworth, one of the executors, and sums which he had been suffered to draw from the funds of the estate and for which it was claimed that his co-executors should have been held individually liable. These different questions were raised by exceptions to the auditor's report and the decision of the surrogate, and were specifically passed upon by this court, some of the exceptions being sustained and others overruled. The executor's account was not re-opened, but was remanded to the surrogate of Livingston county for the sole purpose of being re-adjusted in conformity with the opinion of this court which opinion was inserted in and formed part of the remittitur.

The accounts, as settled by the surrogate, were not disturbed