
    In the Matter of the Judicial Settlement of the Account of Proceedings of Title Guarantee and Trust Company and Others, as Sole Surviving and Acting Executors, etc., of James Jennings McComb, Deceased, Appellants. Fanny McComb Herzog and Others, Respondents.
    Second Department,
    July 24, 1906.
    Executors and administrators — when counsel fees of executors seeking to sustain will should he allowed — physician’s hill allowed.
    In the absence of had faith or excessive payments, executors should be allowed amounts expended in counsel fees in" an effort to sustain a provision of the will.
    The fact that they were finally unsuccessful is immaterial. When the executors failed to sustain the will at trial but succeeded in the Appellate Division, but were defeated in the Court of Appeals, counsel fees paid by them, if not excessive, should be allowed out of the estate.
    When the estate consists of several millions a payment by the executors of a bill of §4,000 to a physician who devoted all his time to the testator in his last illness should be allowed in full.
    Appeal by the Title Guarantee and Trust Company and others, as sole surviving and acting executors, etc., of James Jennings McComb, deceased, from certain portions of a decree of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 31st day of March, 1905, judicially settling the accounts of the said executors.
    
      George A. Strong, for the appellants.
    
      Robert L. Harrison [Robert W. B. Elliott with him on the brief], for the respondents.
   Hirschberg, P. J.:

An appeal was taken from the entire decree by one of the beneficiaries of the estate, hut it was stated upon the argument that that appeal had been withdrawn. There is left, therefore, for consideration only the appeal by the executors from so much of the decree . as disallows as a charge against the estate the amount paid by them to counsel who represented them in certain litigation, and one-half of the sum paid by them in discharge of the bill of the physician who attended the deceased in liis last illness.

The estate consists of several millions of dollars of real and personal property. By the 9th clause of the 3d codicil of his will the testator provided that instead of receiving an equal share of his estate, his daughter, Fanny, should be entitled only to a comparatively small annuity in case she married Mr. Louis Herzog. This provision of the will has occasioned considerable litigation. The daughter first brought an action for the construction of certain provisions of the will, especially that portion of the 9th clause of the 3d codicil just referred to. The court, however, refused to pass upon, that provision of the will, as she was not then married, and no live question was then presented for determination. (McComb v. Title Guarantee & Trust Co., 36 Misc. Rep. 370, 376.) The decision then rendered was afterward affirmed by the Appellate Division in the first department. (70 App. Div. 618.) Thereafter she married Mr. Herzog and renewed the action, and upon the trial the provision of the 9tli clause of the 3d codicil of the will was declared invalid. An appeal was taken by the executors from that decision, and' such appeal was justified by the unanimous decision of the Appellate Division, to the effect that the 9th clause of the 3d codicil of the will was valid. (See Herzog v. Title Guarantee & Trust Co., 85 App. Div. 549.) An appeal was then taken to the Court of Appeals, where the matter was finally settled by a unanimous decision of that court to the effect that the clause in question was invalid. (177 N. Y. 86.) Upon this statement of facts the learned surrogate has held that the executors cannot be reimbursed from the estate the amount legitimately expended by them in the litigation, but that such expenditure is a charge only against the unsuccessful parties to the litigation.

I know of no principle of law which can support this ruling. There is no claim of bad faith or that the amount expended is excessive. The conduct of the executors is to be tested by the rule of good faith and not by mere success. It was both their right and their duty to endeavor to uphold the will so that the wishes of the deceased should be carried out if they lawfully might be. That the question at issue was a difficult one to solve is apparent from the conflicting decisions of the Appellate Division and the Court of Appeals. The executors were not compellable at their personal risk to acquiesce in the decision of the Special Term, and its reversal by the Appellate Division must be regarded as a complete justification of their course in taking an appeal. With that decision in their favor they could not, without violating their duty, have refused to defend it in the Court of Appeals. In view of the magnitude of the estate, they were justified in the employment of eminent counsel and in the employment of more than one, always assuming, as I have said, that their good faith in the transaction is not impugned.

I think it was error in the learned surrogate also to cut the doctor’s bill in two. The physician who treated the testator in his last illness dévoted his entire time to that labor, and testified that the amount which he charged for his services was fair and reasonable. The executors paid him in that belief, and in this branch of the case as in the other there is no reason whatever to believe but that in doing so they considered that they were acting in the best interests of the estate. The bill amounted to $4,000. I can find nothing in the record to indicate that, had the bill been rejected and a law suit followed, the estate would have been any better ofE financially. The question is not whether the services of the doctor should have been rendered for less. It is whether the executors exercised their honest judgment in believing it to be a proper claim and in paying it. Even if .they erred in judgment, that fact alone would not make them personally liable.

The decree, in so far as appealed from by the executors, should be reversed and the disputed items allowed as charges against the estate, with costs payable out of the estate. ,

Woodward, Gaynor, Rich and Miller, JJ"., concurred.

Decree of the Surrogate’s Court of Westchester county, in so far as appealed from by the executors, reversed and the disputed items allowed as charges against the estate, with costs to the executors, appellants, payable out of the estate.  