In re Huntley

The executor filed his account, duly verified. The creditors filed objections to certain items of credit for-costs and disbursements alleged to have been paid by the executor in litigating the bill of the undertaker for the funeral expenses of the deceased.

The question presents some embarrassing features. The office of an executor or administrator is a position of responsibility, and its duties are often delicate and exacting. Such positions are rarely sought, especially where the estates are small, and in such cases the compensation is usually very inadequate for the responsibility assumed and labor performed. The law is, therefore, indulgent where it appears that the trustee has been prompted by proper motives and has exercised reasonable judgment. On the other hand, the law condemns every act savoring of dishonesty or negligence in the administration of the trust whereby loss is suffered. But honesty, good intentions, and even advice of counsel, are not always sufficient, where loss has occurred to the estate through mismanagement. The law in addition requires that persons who accept such positions must, in the performance of their duties, be held to exercise a reasonable measure of intelligence, and such ordinary discretion and judgment as men usually exercise in the management of their own affairs. The expenditures in question, if allowed, must be allowed under section 2730 of the Code of Civil Procedure, as amended in 1893, which provides that executors and administrators may be reimbursed out of their estates for such “actual necessary expenses” incurred by them as “appears just and reasonable.” This provision, though recently embodied in the Code, has long been a well-settled rule in equity. Young v. Brush, 28 N. Y. 667 , 673. It also existed in a statutory form for many years prior to its re-enactment in the Code. 2 Rev. St. 93, § 58, as amended by Laws 1863, c. 362. The application of this provision to expenditures by executors and trustees for legal services is, I think, well stated in the case of St. John v. McKee, 2 Dem. Sur. 236. Rollins, S., says:

“The bare fact that an executor has actually expended for legal services the sum for which he asks to be reimbursed does not, of itself, entitle him to reimbursement, nor, indeed, does he become entitled simply by showing, in addition, that lie has acted honestly and in good faith. If objection is interposed it must also be made to appear that when the services were rendered they were demanded or seemed to be demanded by the best interests of the estate.”

The case of O’Connor v. Gifford, 117 N. Y. 278 , 22 N. E. 1036 , cited by the counsel for the executor in support of his contention, is a case where an executor was sought to be charged on account of his failure to collect alleged collectible assets of his estate. It must be conceded that the rule of duty and diligence imposed upon an executor or administrator is the same whether a claim is prosecuted or defended, and that the rule laid down in that case should apply here.

This brings us to the real question in this case, which is, did the executor exercise reasonable judgment and discretion in entering upon the litigation, and incurring an expense of several hundred dollars in contesting the payment of the bill of the undertaker? The facts in the case are these: The undertaker presented a bill to the executor for $127 for funeral expenses. The bill appears to have been contracted by a Mrs. Vallee, who resided in the same house with the deceased, and attended her during her illness, and who was a relative of the decedent’s late husband. The executor learned of the order shortly after it was given. He lived about six miles from the deceased, and when he heard of her death, which was telephoned him by Mrs. Vallee, he spoke to an undertaker residing near him in Sandlake to attend to the funeral, but when he learned on his arrival at the house of the deceased that Mrs. Vallee had gone to Troy to engage an undertaker and make arrangements for the funeral he countermanded his own order, and Mrs. Vallee contracted the bill in question. It further appears that Mrs. Vallee stipulated with the undertaker that she should not be personally charged with the bill, but the undertaker should look to the estate, and the executor had knowledge of this arrangement before the suit was brought. The entire estate consisted of $827 in money. The bill was presented to the executor, and payment was refused on the grpund—First, that it was excessive; second, that, the services and material of the undertaker having been ordered by Mrs. Vallee, the undertaker must look to her for payment, and when paid the executor would be liable to her for the reasonable funeral expenses of his decedent. Suit was brought, and the case was referred. The referee reported in favor of the plaintiff for the amount of the bill with interest. Judgment was entered thereon for damages $131.69, costs $188.69, amounting

The defense that an action would not lie against the executor in the first instance, but should have been brought against Mrs. Vallee,. was obviously untenable, since it appears that the executor impliedly authorized her to act for him by revoking his own order and accepting her services in the employment of the undertaker. Beyond that, it is a well-settled elementary principle th^t an executor is-liable for reasonable funeral expenses of his decedent, whoever may have ordered the same, whether with or without his knowledge or consent. Redf. Law & Pr. Sur. Cts. (5th Ed.) 438; Patterson v. Patterson, supra; Ferrin v. Myrick, supra. This litigation had its-origin in an idea which, I think, obtains quite generally among executors and trustees, and perhaps to some extent in the" legal profession, that an executor or trustee may safely litigate any fairly controvertible question of law or fact arising in the course of administration, without the liability of having his action called in question,, provided he acts in good faith and under the advice of counsel. I am satisfied this is not the law. It would be establishing a very dangerous precedent to hold that an executor uould, on the .plea of acting in good faith and under advice of counsel, fritter away an estate in litigations over claims of trifling amounts. A reasonable test in such case is, would the executor or trustee, in the management of his own affairs, under like curcumstances, have incurred the expense in question? If not, then he certainly should not be credited with it in his account as executor or trustee. Besides, in cases of doubt, it is the right, if not the duty, of the executor or trustee to seek instruction from the court as to his duty in the premises. Code Civ. Proc. § 2472, sudb. 3; In re Underhill, 117 N. Y. 471 , 22 N. E. 1120 . I am free to concede that the rule must not be-drawn with too much strictness, but, making the most ample allowance for honest intent and reliance on advice of able and experienced counsel, and the additional fact that the executor acted in the premises under the belief that he was proceeding within the lines of his-powers and duty, yet it seems to me that when the matter wasi submitted to a referee of experience and ability, and half a dozen witnesses testified to the value of the services rendered and the material' furnished, and the referee found that the amount charged and expended was reasonable and in accordance with the rank and circumstances of the deceased, and also found as a conclusion of law (about which there could be no question) that the executor was primarily liable for the funeral expenses ordered, then, at least, this litigation-should have ended, and I cannot conceive of any reasonable excuse for the expenditure of a large additional sum from the money of this-"estate in printing the case and taking an appeal to the general term of the supreme court. The line must be drawn somewhere, and per

Decreed accordingly.