In re the Judicial Settlement of the Account of Ritch — 83 N.Y. Sup. Ct. 36

Majority

p. 36

In the Matter of the Judicial Settlement of the Account of Thomas J. Ritch, Jr., as Administrator, etc., of Nathaniel O. Hauxhurst, Deceased.

Headnote

Appeal by an administrator — when justifiable — reasonable disbursements made therefor must be allowed.

When the questions raised in an action are sufficiently doubtful to warrant the hope that a judgment recovered against an estate may be reversed, and when all the next of kin, other than the judgment creditor, urge an appeal from, such judgment, the administrator of the e.state is justified in taking an appeal therefrom, and upon his accounting should be allowed his reasonable disbursements connected therewith.

Appeal by the administrator, Thomas J. Ritch, Jr., from portions of a decree of the Surrogate’s Court of Queens county, made on the 31st day of October, 1893, and entered in the office of the cleric of the Queens County Surrogate’s Court, judicially settling his accounts as administrator with the will annexed of the goods, chattels and credits of Nathaniel O. Hauxkurst, deceased.

Geo. O. Brainerd, for the appellant.

Benjamin W. Downing, for the respondent.

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 worth that amount, but. upon the theory that no appeal ought to have been taken, and hence that they were unnecessary.

It is plain, I think, that if the decision was based upon the point the services were not worth the amount charged, it is not sustained by the proofs, as there is no evidence going to show that 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 said next of' kin (except the plaintiff who had recovered the judgment) then united in a request and a statement that said administrator have the said, judgment reviewed by other tribunals.”

p. 37

Here was a judgment that swept away the entire estate, and it is not to be supposed for an instant that a clamerous 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.

The order must be reversed, with costs.

Cullen and Dykman, JJ., concurred.

Order reversed, with costs.