Boynton v. Laddy — 3 N.Y.S. 93

Majority

p. 93

Boynton v. Laddy.

(Supreme Court, General Term, Third Department.

November 20,1888.)

Headnote

Wills—Probate—Liability of Estate for Expenses—Attorney’s Fee.

Where a testator expressly made the expenses of administration a charge on his-■estate, an attorney employed by the principal legatee and devisee, there being no' executor named in the will, to procure the probate of the will, may recover for such services from the estate, though he has obtained á judgment against the person who employed him.

Appeal from special term, Essex county.

Action by Adelbert W. Boynton against Jane Laddy, as administratrix of the estate of Alpheus Wilkins, deceased, for services rendered in probating-the will,' etc. Plaintiff was employed by Melville Wilkins, and afterwards, the latter becoming a non-resident, letters of administration were granted to defendant. The first clause of the will was as follows: “I direct that all my funeral charges, the expenses of administering upon my estate, * * * be paid out of my estate, both real and personal; upon which I expressly charge the payment thereof for the purposes mentioned above.” Judgment was rendered for defendant, and plaintiff appeals.

Argued before Learned, P J., and Landon and Ingalls, JJ.

Hand, Kellogg and Hale, for appellant. Byron Pond and Edgar T. Brackett, for respondent.

Wilkins expressly made, by his will, the expenses of administering a charge on his estate. The plaintiff’s bill was one of the expenses of administering. As it was not paid when presented, the plaintiff might properly maintain this action to enforce the, charge. There was no executor named in the will, but Melville Wilkins was the principal legatee and devisee. He was therefore authorized to take proceedings for the probate of the will. Code, § 2614. He did so, and in doing this employed the plaintiff’s-firm. He would himself have been entitled to letters of administration with the will annexed had he chosen to take them. The recovery of a judgment by plaintiff against Melville Wilkins does not take away the effect of the will making these expenses a charge. They are in any case justly to be paid out of the estate, even if first paid by the administratrix, and then allowed to her in her accounting; and when the will has made them an express charge, that justifies a judgment that they be paid from the estate. It is of little consequence whether an action at law lies against the administratrix, in view of the language of the will. Without questioning the general rule that contracts made by an executor are to be enforced against him personally, even when he may be allowed on his accounting for money paid thereon, we yet think that for the reasons above given, and under the circumstances of this case, and the language of the will, the plaintiff was entitled to enforce the charge against the estate. J udgment reversed, new trial granted, costs to abide the event.

Landon and Ingalls, JJ., concur.