In re Miller — 4 Redf. 302

Majority

p. 302

Kings County.—HON. W. L. LIVINGSTON, Surrogate.—

April, 1880.

Matter of Miller. In the matter of the accounting of Henry J. Cullen, Jr., as administrator, &c., of Susan B. Miller, deceased.

Headnote

An administrator will be allowed upon his accounting, the amount paid for funeral expenses, in the absence of proof that they were unreasonably large, even though they were first paid by the son of the deceased; to whom the administrator subsequently repaid the amount.

The law implies a promise on the part of the administrator, having assets in his hands, to reimburse the person who pays the funeral expenses.

Where the administrator, in good faith, institutes legal proceedings for the benefit of the estate, a result favorable to the administrator in the first instance, though reversed on appeal, proves that the proceedings were not altogether groundless.

The awarding of costs on appeal against the estate is no evidence that the .court considered the proceedings unjustifiable.

Nor does such a conclusion follow from the fact that costs are" awarded against the estate in a case where the administrator is plaintiff.

It is different vdiere the administrator is defendant. If costs are awarded against him in such an action, it is evidence that the claim has been unreasonably litigated.

p. 303

Hence, where an administrator proceeds against an individual for the collection of an alleged claim, and obtains a favorable decision in the first instance, which is reversed on appeal to the General Term, with costs to be paid out of the estate; and upon appeal by the administrator to the Court of Appeals the order of the General Term is affirmed, with costs to he paid out of the estate, Reid, upon an accounting hy the administrator, had at the instance of the party so sued, showing no assets in the hands of the administrator, that the administrator must be allowed the proper expenses and disbursements incurred by him in carrying on those proceedings.

Application by a creditor, fco compel the administrator, Henry J. Cullen, Jr., to account and pay the creditor’s claim.

The administrator instituted certain proceediugs against the creditor to collect an alleged claim against him', which proceedings resulted in an order in favor of the administrator.

An appeal from that-order was taken by the creditor to the General Term and the judgment was reversed, with costs to be paid out of the estate.

On appeal to the court of appeals by the administrator, the order of the general term was affirmed, with costs, also payable out of the estate. The administrator accounted, showing that there were no assets in his hands. In the accounts the administrator credited himself with $274.58 for funeral expenses paid by him to the son of the deceased, who had originally paid the same; and also with various sums, amounting to $214.22, for referee’s fees, counsel fees, stenographer’s fees, and other disbursements connected with the said legal proceedings.

■The creditor objected to these two amounts and insisted that his claim, which consisted of the costs of, appeal above mentioned, should be paid.

p. 304

Samuel B. Higenbotom, for petitioner.

George B. Abbott, for administrator

The Surrogate.—The objection to the payment of the funeral expenses must be overruled. They were paid long before the creditor’s claim arose, and there is no evidence to show that they were unreasonably large. It makes no difference that they were first paid by the son of the deceased;' the law implies a promise on the part of the administrator having assets in his hands to reimburse him. (Dayton on Surrogate, 285; McCue v. Garvey, 14 Hun, 562 .)

The objection to the expenses incurred in the legal proceedings against the creditor must also be overruled. These proceedings were brought in good faith for the benefit of the estate, and' the fact that they resulted in the first instance in an order in favor of the administrator proves that they were not altogether groundless. That tho costs on appeal were awarded to the creditor is no evidence that the court considered that the proceedings were unjustifiable. (Hunt v. Connor, 17 Abb. Pr., 466 .) Nor will such a conclusion follow from the fact that costs were awarded against the administrator in a case like this one, where he is the plaintiff or prosecuting party.' (Fox v. Fox, 22 How. Pr., 453 ; Howe v. Lloyd, 9 Abb. Pr., N. S., 257.) In this respect this' case differs from Matter of Nichols, recently decided by this court, where costs had been given by the court against the executor, in an action brought against him, which was considered evidence that the claim had been unreasonably litigated by the administrator. (2 R. S., 90, § 41.)

The administrator must therefore be allowed in his ac

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count for the proper expenses and disbursements incurred by him in carrying on the proceedings referred to. {Redf. Burr. Pr., 394.)

Ordered accordingly.