Douglas v. Yost

my executor may elect.” Then, after giving legacies to the amount of $2,000, she gave to her two sisters an annuity of $500 each during their respective lives, with the provision that her executor might, in his discretion, suspend such annual payment, or reduce the amount to $300 annually, if he deemed it best and proper for the benefit of her estate. She named two parties who should have the power to superintend the care of the person of her son during his life, with the right to designate the place of his residence, and the persons who should have the immediate charge of him, and might, if they deemed it necessary, purchase a residence for that purpose ; and she directed her executor to pay to them from her estate, real and personal, and the rents and profits thereof, such sums as may be reasonably necessary for the maintenance of the son over and above what he may have from his own estate, and also such sums as they may fairly expend for the purposes named, as well as a reasonable compensation for their own services. She named the plaintiff as the executor, and authorized and directed him “ to lease and rent any and all of my real estate after my death for such times and on such terms as he may deem best.” There was a codicil, but its contents do not appear.

On the 23d June, 1883, the plaintiff presented to the surrogate’s court a petition for the probate of the will. Objections to the probate were thereafter filed on behalf of the son, and a contest was had in the surrogate’s court. Pending this, and on the 3d September, 1883, John D. Ellis was appointed temporary administrator of the estate of Harriet Chase, deceased, and on the 21st June, 1884, a committee was appointed by the supreme court of the person and estate of the son. On the 28th November, 1884, a decree was made by the surrogate refusing probate to both said will and codicil; and in connection with this the surrogate passed upon and allowed the plaintiff the full bill of costs and disbursements provided by statute, being the sum of $904.72, of which $420 was costs,

and $484.72 were disbursements, and the same were accepted by the plaintiff. Thereafter the plaintiff appealed to the general term, and in July, 1886, a decision was rendered (Matter of Chase, 41 Hun, 203 ) reversing the decree, and directing a new trial before a jury. A new trial was had, which resulted in a verdict sustaining the will and rejecting the codicil.

In pursuance of this verdict, and on the 3d February, 1887, a decree was entered in the surrogate’s court admitting the will to probate, and granting letters testamentary to plaintiff, who thereupon qualified and entered upon the discharge of his duties. In this decree there was adjudged to the plaintiff, for costs and disbursements accruing and incurred by plaintiff, as proponent of said will and codicil, subsequent to the prior decree, the sum of $1,435.70, of which $285 were costs and $1,150.70 were disbursements. These sums were paid to the plaintiff or his 'counsel. After plaintiff’s qualification as executor, Ellis, the temporary administrator, rendered an account of his proceedings. Over this there was a contest, and the same was finally settled by decree of the surrogate’s court on March 31, 1888. On the 10th April, 1888, the plaintiff received from Ellis the personal estate, amounting to $22,748.86. Ellis also surrendered to the plaintiff the real estate of the testatrix, consisting of three farms, and the plaintiff has since then received the rents and profits. On the 22d December, 1890, James Chase, Jr., died, and the appellants, Yost and Chase, were on the 29th December, 1890, appointed administrators of his estate. In September, 1884, Fred Waddingham was appointed by the surrogate of Jefferson county, administrator de bonis non of the estate of James Chase, Sr., in place and stead of Harriet Chase, deceased. In December; 1888, plaintiff had a settlement with such administrator concerning the indebtedness of Harriet Chase to that estate by reason of her administration thereof, in which settlement it was found that $7,927.04 was the amount of such

indebtedness, and this was duly approved by the surrogate’s court, and the plaintiff authorized by that court to pay the same to such administrator. About the same time there was a settlement between -plaintiff and Waddingham, as committee of the estate of James Chase, Jr., by which it was found that the indebtedness from Harriet Chase, to her son, at the time of her death, by reason of her use and occupation of the real estate of her son, was the sum of $2,179.59. This settlement was affirmed by both the supreme^court and the surrogate’s court and the plaintiff authorized to pay the same to the said committee. Of the sums so found due there is still unpaid about $1,000.

It was found by the special term, upon sufficient evidence, that the defendant Yost, administrator, etc., and some of the paternal heirs of James Chase, Jr., claimed that the settlement and adjustment of the indebtedness of Harriet Chase with said Waddingham was illegal and void, for want of notice of the same to the paternal heirs, and that such settlement would not be acquiesced in, nor binding upon them. It was also found that upon the trial it was claimed by some of the maternal heirs of James Chase, Jr., that the-provisions of the will authorizing the renting of the real estate by the executor were void, and that the rents received by him were real estate, and should be paid to the maternal heirs, to the exclusion of the administrators of the estate of James Chase, Jr., and his paternal heirs, and that it was the duty of Waddingham, upon his appointment as committee, to have taken possession of the real estate of the testatrix, and received the rents and profits down to the time of the death of said James; that it was claimed by the administrators of James Chase, Jr., that the rents and profits received by plaintiff were personal estate, and that they were entitled to receive the same as such ; that Waddingham claimed he had no right to take possession of such real estate, or receive the rents and profits.

The appellant’s counsel claims that there is no proof to sustain these findings. No exception is taken to them. The answers of the defendants, the maternal heirs, and of Waddingham are not printed in the appeal book. The complaint is broad enough to cover all these questions. It is quite apparent from the pleadings that are printed, and from the requests of the appellants, that a question was made as to the validity or extent of the power of the plaintiff over the real estate. There was also apparently a question whether the surviving annuitant had directly a lien on the real estate, or indirectly a lien, through the exercise by the plaintiff of the election given him, in the first clause of the will, whereby the debts there referred to would be payable from the real estate, thereby increasing the amount of the personal estate applicable to the payment of the annuity.

It further appears that- the plaintiff, in the litigation concerning the probate of the will, employed counsel, whose services were reasonably worth several thousand dollars over and above the sums awarded as costs in the decrees of the surrogate’s court. It is found upon sufficient evidence that such employment by the executor was necessary, and was made in good faith, and for the benefit and protection of the estate. There is no dispute in the evidence as to the value of the services. After such services were rendered, and the will admitted to probate, and letters testamentary issued td plaintiff, the surrogate informed the plaintiff that counsel fees on account of said probate proceedings could not be lawfully paid by him on account of said estate, and that no allowance could be made on the settlement of plaintiff’s accounts as executor for payment of such services, whatever their value, unless it should be first determined by the supreme court that the same are authorized by law, and can be allowed to an executor on his final accounting. Having in view the character of the will in question, the proceedings by plaintiff thereunder, in the

It is suggested by the appellants that the court had no-right to pass upon the propriety of such payments before they were actually made by the executor. The appellants had full opportunity to be heard, both as to the right and the amount, and it is difficult to see how the rights of the appellants have been injured or impaired by the determination of the question before actual payment. The judgment does not provide for any credit to the executor for such charges before actual payment, and in that respect is not within the rule laid down in Re Bailey, 47 Hun, 477 , and kindred cases. As said by Finch, J., in an analogous case (in re Attorney-General v. North Am. Life Insurance Co., 91 N. Y. 61 ), they are none the less the necessary expenses of his trust because fixed in advance of actual payment. In Gilman v. Gilman (6 Supm. Cf, [T. & C.], 211, affirmed in 63 N. Y. 41 ), counsel fees seemed to have been allowed before payment.

We then come to the question whether the plaintiff is-entitled to be indemnified from the estate for expenses-necessarily and in good faith incurred in obtaining the probate of the will. The claim of the appellants is that the plaintiff can obtain for such expenses nothing-beyond the costs awarded to him in the decrees of the surrogate’s court made in November, 1884, upon refusing probate of the will, and in February, 1887, upon admitting the will to probate. The costs allowed in those decrees were those permitted by sections 2558-2561, Code, and may properly be called the “taxable costs ” of the proceedings, and were apparently paid by the temporary administrator while the estate was in his hands. They are not, as between the' attorney and the client, the measure of the value of the services of the attorney (Gallup v. Perue, 10 Hun, 525 ). The statute (2 R. S. 93 [8th ed. vol.4, p. 2564], § 58), with reference to the settlement of accounts of executors, provides that “ in all cases such allowance shall be made for their actual and necessary expenses as shall

appear just and reasonable.” This would include expenses of the character stated, incurred in the employment of legal counsel on the application for probate (Redf. Surr. [2d ed.] p. 458; 1 Williams Ex'rs. [6th Amer. ed.] p. 442, note y; Young v. Young, 8 Gill. 285 ).It was the right of the executor, and ordinarily his duty, to present the will for probate (1 Williams, Ex'rs. 355). So that his reasonable expenses in that regard would be incurred in the discharge of the dirties of his trust. His right would be deemed as accruing at the date of the death (1 Williams, Ex'rs. 696).

It has been held by the court of appeals that the • supreme court has power to make allowances to trustees, and others acting in a fiduciary capacity, for all expenses necessarily incurred in the faithful performance of their duties, including counsel fees, and that the power to do this is independent of the statutory provisions relating to costs (Wetmore v. Parker, 52 N. Y. 450 , referring to Downing v. Marshall, 37 Id. 380). This is applicable to executors, and the existence of the principle seems to be conceded in Re Holden ( 126 N. Y. 593 ). See, also Wood-ruff v. N. Y., Lake Erie, etc. R. R. Co. (129 Id. 27). There is nothing in the provisions of the Code as to the costs in probate cases that interferes with this principle. There is no good reason presented for inferring an intent to so interfere. Did not such a rule exist, there would be many cases where the wills of testators, as well as their estates, could not be fairly protected without great personal loss to the executors. A testator, in naming an executor, gives him an implied authority and direction to do all he reasonably can to prove and carry out the will, and this carries with it the right to charge the estate with the reasonable expense. We see no good reason in the present case why the plaintiff should not be indemnified. It is not necessary here to consider the effect of the provisions of section 2562 of the Code, as that does not refer to counsel fees in a case like the present.

But it is said that the surrogate’s court in its decrees as to costs adjudicated that the costs then allowed were all that the plaintiff was entitled to receive for expenses of counsel in those proceedings. There was no adjudication in terms to that effect, nor is that the fair inference from those decrees. The taxable costs were allowed. The question of what the plaintiff had incurred for counsel fees or should be allowed was.not then before the court. The parties were not there who had a right to be heard on the question. In Unglish v. Marvin ( 128 N. Y. 380 ) it is said that a party relying upon a former adjudication as a bar must show that the point involved was decided in the former suit. We fail to find here any former adjudication that affects the question. No other questions are presented that call for particular consideration. No fault is found with the form of the decree. It follows that the judgment should be affirmed.

All the judges concurred.

Judgment affirmed with costs.