
    In the Matter of the Judicial Settlement of the Accounts of William Blair and William E. Blair, as Administrators of the Estate of Lewis R. Blair, Deceased. William Blair, as Administrator, etc., of Lewis R. Blair, Deceased, Appellant; William E. Blair, as Administrator, etc., of Lewis R. Blair, Deceased, and Others, Respondents.
    
      Oounáelfees owing by an executor and paid by him, after the probate of the will is set ■ aside and he is appointed administrator — they must be credited to him in his account as executor and not in his account as administrator — his account as executor opened for that purpose.
    
    A will was admitted to probate in the Surrogate’s Oourt and letters testamentary were issued to the executor nominated therein. Upon appeal the decree of pro- ■ hate was reversed and the letters were revoked. Up to the time of the revo- . cation of the letters the executor had paid his counsel §>2,150 on account out of the funds of the estate. He gave his note for the remainder of the sum due to his counsel and then filed his account as executor, alleging the note as a payment. The surrogate found that the counsel fees were reasonable to the extent of §4,850, and allowed the pote as a payment to the extent of the balance due of §2,700. 'The Appellate Division affirmed the surrogate’s decision and findings, but refused to allow the note as a payment on the ground that it was not a payment.
    After the revocation of the letters testamentary, but before his discharge as executor, the late executor and another were appointed administrators of the estate of the deceased. Thereafter such executor paid in cash the balance due his counsel, and on his accounting as administrator claimed reimbursement from the estate.
    
      Held, that the balance paid to the attorney could not be paid out of the funds of the estate unless it was credited to the executor upon his accounting as such;
    That it was not the intention of the Appellate Division on the appeal from the-decree allowing the note as a payment to hold that the executor might not be-allowed for a proper obligation incurred by him in the course of administration, but which was not in fact paid until after his letters were revoked;
    That the executor was not entitled to be credited with such sum upon his accounting as administrator, but that he should be permitted to move for leave to open his account as executor and to file a supplemental account embracing the item.
    Appeal by William Blair, as administrator, etc., of Lewis R. Blair, deceased, from that portion of a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 18th day of April, 1901, which disapproved a finding of the referee who stated the account, that the appellant was entitled to reimbursement out of the estate for the sum of $2,700 paid by him for counsel fees in the matter of the probate of the alleged will of Lewis R. Blair, deceased.
    The will of Lewis R. Blair was probated in the Surrogate’s Court of Hew York county, and letters testamentary were issued to William Blair as executor in Hovember, 1894. Upon an appeal the decree of probate was reversed .by the General Term of the Supreme Court, which reversal was sustained on appeal to the Court of Appeals in March, 1897, and on April 8, 1897, the letters were revoked. (.Matter of Blair, 84 Hun, 581; 152 H. Y. 645.) Up to the time of the revocation of his letters, the executor Blair had paid his counsel $2,150, on account of counsel fees, out of the estate funds. This payment was made prior to February, 1895, after which payment he was unable to pay any more, as he was insolvent, except as to his one-fifth share of the estate, which contestants succeeded in keeping from him. He, therefore, gave his mote for the remainder due and claimed the same as a payment. He "then filed his account as executor, alleging the note as a payment. 'The referee to whom the account was referred found that the 'executor had a right to retain counsel; that the counsel fees- were properly incurred, and were reasonable to the extent of $4,850, and allowed the note as a payment to the extent of the balance due of $2,700. The surrogate affirmed these findings, and upon appeal the Appellate Division affirmed the surrogate’s decision and findings, except as to allowing the note as a payment, on the ground that the note was not a payment, and that after the revocation of his letters the executor had no authority to bind the estate. (Matter <of Blavr, 49 App. Div. 417.) William Blair thereafter applied for leave to file a supplementary account, which was denied. After the revocation of his letters testamentary, but before his discharge as ■executor in October, 1897, William Blair, the late executor^ and William E. Blair were appointed administrators of the estate of said deceased. Being still unable to pay the balance due counsel, and allowed by the surrogate, to wit, $2,700, William Blair, in April, 1900, personally pledged his share of the estate and obtained a loan sufficient to pay, and actually did pay to his counsel in cash, the said balance due . of $2,700. He then filed his account herein as administrator and claimed reimbursement from the estate. Objections were filed by William E. Blair and others, the account was .referred and on the hearing -the following questions were presented: (1) Whether the said $2,700 had been actually paid by •said William Blair to his counsel (2) If so paid by William Blair, whether he was entitled to - reimbursement from the estate. (3) Whether the matter of reimbursement was “res adgudieata? ” The referee found in favor of William Blair on the first two points, and against William E. Blair, the other administrator, on the third point. Exceptions were duly filed by the respondents, and -upon a hearing before the surrogate 'he rendered a decision in which he affirmed the report of the referee as to all findings, except the "finding allowing William Blair the said sum of $2,700, which he disallowed, and a decree was entered accordingly from which this appeal is.taken.. • .
    
      
      James O'Neill, for the appellant.
    
      Anthony B. Porter, for the respondents.
   Hatch, J.:

It is elementary law that an administrator has no authority to allow or pay any claim unless it exists against the estate, and, except for a limited amount, he must produce a voucher for the payment or prove its loss before he is entitled to be allowed therefor. In addition, he is to be allowed proper expenses of his administration of the estate ; but beyond this he cannot create any charge against the estate or pay any but lawful obligations charged thereon.

It is clear that the obligations incurred by the executor in defending the probate of the will, so far as attorneys’ fees are concerned, became a charge, not against the estate, but against the executor personally. Such charge never becomes an obligation of the estate until allowed to the executor in his account. It is evident, therefore, that the basis upon which an administrator is authorized to allow and pay obligations of the estate fails as applied to the present case, because this was never an obligation of the estate nor an expense incurred by him in its administration. The law makes specific provision for the allowance of such claim in the account of the executor, and there is no other provision of law which provides for its allowance or which makes it a charge against the estate. The method of the allowance to the executor which the law provides is exclusive, and unless he is credited with it in the settlement of his account there is no provision of law authorizing its payment out of the funds of the estate. ' .

The learned surrogate held that the former decision by this court (Matter of Blair, 49 App. Div. 417) was “ res ad/judioala ” of the right of the executor to be paid this sum. The only question before the court upon that appeal was whether the giving of a note for the unpaid balance of the attorney’s fees in the matter of probating the will could be considered as a payment, and it was held that the Code provision governing the subject could only be satisfied by an. actual payment in money, and until that was done there was no basis for its allowance. It is stated in the opinion in that case that upon an accounting the executor or administrator could only be allowed for sums actually paid when the account was presented and before the letters had been revoked. We do not, however, understand that it was the intention of the court to hold that the executor might not be allowed for a proper obligation incurred by him in the course of administration, but which was not in fact paid until after his letters were revoked. The court was not speaking of expenses and payments which were properly incurred prior to the revocation of the letters, but of expenses which might be incurred after the revocation. Otherwise, the right of the executor to be allowed for proper obligations which he has incurred would be made to depend solely upon whether he had paid them prior- to the revocation of his letters; In fact, the executor is to' be allowed for such items of expense as • are proper and which he has paid prior to filing his account (Douglas v. Yost, 64 Hun, 155; Gilman v. Gilman, 6 T. & C. 211; S. C. on appeal, 63 N. Y. 41), the purpose of the law being to allow the executor for all proper obligations which he has incurred in the management of the estate while he was authorized to act and which has been paid at the time when his account is presented to the surrogate for allowance.

In the present case there does not seem to be any disputed fact respecting the proper character of the executors’ charge, although it may be otherwise found upon a hearing where it is involved. It was found by the first referee that the obligation was properly incurred. This was affirmed by the surrogate, but was stricken out by this court for the reasons we have stated. It was also found to be a proper charge by the last referee, and was disallowed by the surrogate solely upon a technical question of law. We are not aware of any provision of law which precludes the executor from applying to the surrogate to open his account and for leave to file a. supplemental account embracing this item. The obligation was incurred prior to the revocation of his letters testamentary, and the only reason why he has not been allowed therefor was that he had not paid it. He was, however, liable to the person in whose favor it existed, and such liability could be enforced by action, judgment and execution. Under such circumstances^ so long as the estate remains unsettled, we see no reason why he should not be permitted to have his account opened and leave given to file the supplemental account. It is made to appear in the statement of facts in the record that he made such application and it was denied. The reasons for the denial do not appear. Upon the merits, so far as we are presently advised, there is no reason why he should not have this relief. If there is any objection to the propriety of the allowance claimed, it may be contested in that proceeding, but up to this time it has not been suggested but that the executor has a meritorious claim, and several courts have so determined.

We think the order appealed from should be affirmed, with ten dollars costs and disbursements, but without prejudice to the right of the executor to move for leave to open his account and file a supplemental account.

Patterson and Laughlin, JJ., concurred; Ingraham, J., concurred in result.

Order affirmed, with ten dollars costs and disbursements, without prejudice to the right of the executor to move for leave to open his account and file a supplemental account.  