Estate of Mull — 16 N.Y. St. Rep. 981

Majority

p. 981

Estate of Jane Mull, Deceased.

(Surrogate’s Court, New York County,

Filed May 24, 1888.)

Headnote

Executors and administrators—Cost in contest between executor AND DISTRIBUTEE AS TO ASSETS.

Where upon the final settlement of an estate a contest arises between the executor or administrator and distributees as to whether a particular fund is assets of the estate or belongs to the executor or administrator individually and the decision is made in favor of the distributees, the executor or administrator is liable for the costs of the proceeding.

p. 982

Motion for the adjustment of costs, to charge the same against the executor personally, and also to charge him with interest on the fund found to be in his hands.

This proceeding was begun in 1883 for an accounting and was opposed on the ground that the petitioner had assigned her interest; the alleged assignment was subsequently surrendered and canceled.

There is no statement in the opposing affidavits with reference to the details of the bills of costs presented, the executor contenting himself with a denial of the merits, reiterating his statement that the partnership between himself and decedent terminated in 1869, and that a settlement was effected between himself and the testatrix prior to her death.

J. H. Whitlegge, for petitioner; Leeds & Morse, for legatee, E. Horve; Austin J. Perry, for executor, George B. Lawton; E. W. Chamberlain, for C. E. Mull et al.

The rule laid down for the guidance of the exercise of the discretion of the surrogate in a case of this chai’acter is well stated in Williams on Executors (6th Am. Ed., vol. 3, p. 2,146): “Where upon the final settlement of an estate a contest arises between the administrator and distributees as to whether a particular fund is assets of the estate, or belongs to the administrator individually, and the decision is made in favor of the distributees, the administrator is personally liable for the cost of the proceeding.” It is more briefly set forth in 2 Daniels, Ch. PI. and Pr., (5th Am. Ed., p. 1,419) as follows: “An executor will be liable to costs if he denies assets and the contrary is proved against him.”

. The fund in dispute here consists of the partnership property, the executor having consistently and continually denied the interest of the decedent therein He originally denied the existence of any assets except two pieces of real estate, one of which was a leasehold property, and before the first referee (Mr. Webster) obtained a report that there was an indebtedness of several thousand dollars due to him from the estate, and that there was nothing which could go to the legatees. This report was excepted to and overruled, the court holding that the partnership continued till the death of the testatrix, and sent the matter back to a new referee, who reported assets exceeding $65,000 and various pieces of real estate of large value, in which the deceased had a one-half interest. It is scarcely possible to conceive of a case which would come more clearly within the rule stated.

The motion is granted.

The manner in which the bills of costs have been disposed will appear upon an inspection of the same.