Swift v. Blair's Executrix — 12 Wend. 278

Majority

p. 278

Swift vs. Blair’s Executrix, &c.

Headnote

A party asking for costs against an executor must bring himself strictly within the statute; it is not enough to show that the executor refused to arbitrate ; he must refuse to refer.

It seems, that when costs are granted against an executor, they mUBt be paid from his own pocket.

March 5.

This was a motion for costs against an executrix, under the provision of the statute subjecting executors and administrators to costs, where they refuse to refer, &c. 2 R. S. 90, § 41. The affidavit stated that the defendant had refused to arbitrate, &c.

p. 279

By the, Court,

An executor or administrator is not bound to arbitrate; he can only be asked to refer, in the manner prescribed by the statute. This motion, therefore, must be denied. When it is sought to subject an executor or administrator to costs, inasmuch as they must come out of his own pocket, if granted, for it is only for neglect of duty that he can be subjected to costs, the party asking for the rule must bring himself strictly within the statute.