
    Matter of the Accounting by E. Gaston Higginbotham, as Administrator of the Goods, Chattels and Credits Which Were of Mary V. A. Higginbotham, Deceased.
    
      (Surrogate’s Court, Kings County,
    
    
      June, 1906.)
    .Executors and administrators—Eights and t.tabtt.tties between representative and estate—Items charged or credited—Expenditures requested by next of kin or legatees.
    In a proceeding for the judicial settlement of an administrator’s account, where it appears that after the decedent’s death the parties to the proceeding, who were the decedent’s children, united in an arrangement whereby their unmarried sister continued to reside in the f amily home and use the household equipment, which constituted all the decedent’s estate except her jewelry and wearing apparel, and whereby the administrator paid her such moneys as she required for personal and household expenses and paid the interest, taxes and insurance upon the real estate, held, that such disbursements on account of the real estate should be allowed him on the settlement of his account.
    Proceeding upon the accounting of an administrator.
    Francis B. Mullin, for administrator; Wilson & Wallis, for Rita S. Halligan, objector; Darwin J. Meserole, for Oarlotta Hardie, objector; Leonidas Dennis, for Lawyers’ Surety Company, of New York.
   Church, S.

Several objections were made to the account herein by each of the next of kin. Subsequently to the hearing herein, however, one of such next of kin, Mrs. Oarlotta Hardie, withdrew her objections to the account. The principal objections of the remaining next of kin, Mrs. Rita S. Halligan, do not ■question the propriety and amount of the expenditures for which the administrator seeks credit, but rely upon the proposition of law that they were not such expenditures as come within the scope of an administrator’s dealings with the estate. Such, ■other objections as are filed by Mrs. Halligan are insufficient in my judgment; so that the sole question to be determined is whether these disputed expenditures are such as the administrator can be properly credited with.

For the purpose of thoroughly ascertaining the conditions surrounding this estate, it is essential that a complete statement of the facts should be spread upon the record so that the court may fully appreciate the circumstances under which the administrator took charge of his trust as well as the later developments.

The deceased, Mary V. A. Higginbotham, was the mother of the administrator herein and of the two contestants, Mrs. Halligan and Mrs. Hardie, they being her only next of kin and heirs at law. At the time of the death of the deceased, Mrs. Hardie was not married and for several years had been residing with her mother in the latter’s home, 425 Halsey street, Brooklyn. With the exception of furniture in such house and the wearing apparel and jewelry of the deceased, and with, of course, the exception of the house itself, she left no property except an interest in an estate which has been for the convenience of parties referred to as the Powers estate.

As Mrs. Halligan had an establishment of her own, maintained by her husband, and as the administrator also had a home where he resided with his wife and children, the problem that confronted them as next of kin and heirs at law of the deceased was as to the making of arrangements for the proper support and maintenance of their sister, Oarlotta Higginbotham. This matter was, therefore, the subject of conversation and agreement between these children of the deceased; and Judg Higginbotham suggested that the sister, Oarlotta Higginbotham, should be permitted to reside at 425 Halsey street and also to take the furniture and other personal effects of such house for her own use, and that he and his sister, Mrs. Halligan, should from time to time make such expenditures as became necessary to maintain such establishment. In fact, he went further than merely suggesting that his sister should have permission to keep the house aud was desirous of having Mrs. Halligan unite with him in a deed to his unmarried sister conveying to her the entire ownership of such property. Mrs. Halligan did not approve of this course, but, notwithstanding her refusal, the administrator made and executed to his said sister, Carlotta, a deed of all his-interest in the property left by his mother.

Mrs. Halligan attempts to- deny this proposition, but it is perfectly apparent that she was fully aware of the fact that her mother died leaving no personal estate other than the claim to an interest in the Powers estate, -and that, if her sister Carlotta was to continue to reside at the Halsey street house, some provision would have to be made to enable her to meet the expenses-incident thereto. In pursuance of such understanding, therefore, the administrator herein from time to time gave to his-sister Carlotta such sums of money in cash as she desired for her personal or household expenses, and in addition paid interest, taxes and insurance on the Halsey street property. These expenditures were all advanced for the benefit of the parties interested out of his personal funds, and, when he subsequently received the share of his mother from the Powers estate, he presents his accounts asking that he be given credit for the expenditures thus made -and that they be treated as personal advances on the distributive- shares of the parties hereto.

Mrs. Halligan objects to the various items in -Schedule D of the account, which were made in maintaining such real estate, on the ground that an administrator has no right and is under no obligation to expend any money on behalf of any realty belonging to the estate and, therefore, is not entitled to any credit for sums so expended.

Viewed abstractly, the -correctness of the foregoing contention, as a matter of law, stands conceded. But there are exceptions to this rule; and where the persons who are next of kin are also heirs at law and where it is manifestly advantageous that property descending to them as heirs at law should be maintained and when it can only be so maintained and preserved intact 'by paying therefor from the funds to which they are entitled as next of kin, then such payments will be approved and the administrator will not be charged in his decree with the amount thereof and remitted to his rights in a court of law to recover such funds by an action against the heirs at law.

In this case it is perfectly apparent that Mrs. Halligan knew that this house had to be maintained and the taxes, interest, insurance and other items in connection therewith had to be promptly paid. Her evidence upon this point is evasive and unsatisfactory, and her long period of silence and inaction in relation to this property can only be explained upon the hypothesis that the testimony of the administrator as to the agreement between him and his sisters was the correct understanding of the transaction. The administrator herein is a lawyer of standing and repute in the community. He knew perfectly well, therefore, that unless it was agreeable to the parties that this house should be so maintained, he would not be justified in expending a dollar of the personal property thereon; and if Mrs. Halligan had intimated she would take the position in" relation thereto which she has taken on this accounting, there is no doubt that this administrator would promptly have instituted partition proceedings to have such house disposed of.

Under these circumstances, therefore, the arrangement between the parties was practically a direction by the sisters to the administrator to maintain such house and a promise that the moneys paid in so doing should be regarded as a payment from the distributive shares in the estate of the deceased. It follows as a consequence that, while some of these items are not placed in the proper schedule, the administrator is entitled, notwithstanding, to proper credit therefor and that the net balance remaining in his hands for distribution is correct.

Let findings and decree settling his accounts in accordance with this opinion be presented.

Decreed accordingly.  