Boynton v. Laddy — 20 N.Y. St. Rep. 148

Majority

p. 148

Adelbert W. Boynton, App’lt, v. Jane Laddy, Adm’x, Resp’t.

(Supreme Court, General Term, Third Department,

Filed November 20 1888.)

Headnote

1. Wills—Probate of—Legatee entitled to petition for—Code Crv. Pro., § 2614.

The will of a testator expressly charged upon his estate the expenses of administration. Held, that a person named as a legatee in the will was entitled to institute proceedings for its probate. Code Civ. Pro., § 2614.

■3. Same—Provisions making expenses of administration a charge upon estate—Effect of.

Held, that the expenses of employing counsel by such legatee to procure probate of the will was, by the provisions of the will, a charge upon the estate of the testator.

’.8. Same—What does not vast effect of such provision.

Held, that the fact that the counsel employed for that purpose had recovered payment against the legatee for his compensation for such services did not take away the effect of the will making such expenses a charge, and that a judgment that they be paid from the estate was proper.

Appeal from a judgmént of the special term of Essex '■county.

The action was brought by plaintiff against defendant as .administratrix of the estate of Alpheus Wilkins, deceased, for services rendered in probating the will, etc. Plaintiff was employed by Melvin Wilkins, the principal legatee, and afterwards, he becoming a non-resident, letters of administration were granted, to defendant. The first clause of the will provided as follows: “I direct that all my funeral charges, and 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 above mentioned.”

Richard L. Hand, for app’lt; Edgar T. Brackett, for resp’t.

Wilkins expressly made, by bis 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 in 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.

Judgment reversed, new trial granted, costs to abide the event. . _