Majority
p. 623In the Matter of the Estate of Nathaniel O. Hawxhurst, Deceased. In the Matter of the Estate of Thomas J. Ritch, Jr., as Sole Administrator, etc. (Supreme Court, General Term, Second Department, Filed February 12, 1894.)
Headnote
Costs—Executor, etc.Where an administrator has reasonable grounds upon which to appeal and acts in good faith, he should be allowed his reasonable disbursements.
Appeal from a decree settling the administrator’s accounts.
Geo. 0. Brainerd, for app’lt; Benjamin W. Downing, for resp’fe,
This matter seems to have been determined by the surrogate, not upon the ground that the services for which the $200 were charged - were ■ not performed, or that they were not
p. 624
worth that amount, hut upon the theory that no appeal ought to have been taken, and hence they were unnecessary. It is plain, I think, that if the decision was based upon the point that the services were not worth the amount charged, it is not sustained by the proofs, as there is no evidence going to show they were worth less than charged; neither is there any direct proof that they were incurred in bad faith. The surrogate, however, has found as a fact “that all the rest'of kin, except the plaintiff, who had recovered the judgment, united in a request and a statement that said administrator have the said judgment reviewed by other tribunals.” Here was a judgment that swept away the entire estate, and it is not to be supposed for an instant that a clamorous judgment creditor would favor an appeal that might upset his judgment. The questions raised upon the appeal were sufficiently doubtful to warrant a hope that the/judgment might be reversed. Considering this fact, and the further fact that all the next of kin urged an appeal, we think the administrator acted in good faith; that he had reasonable grounds upon which to appeal, and should be allowed his reasonable disbursements.
Order reversed, with costs.
All concur.