
    In the Matter of the Judicial Settlement of the Account of Proceedings of Friend L. Tuttle and Wilfred H. Gillon, as Executors of Perry J. Fuller, Deceased, and Application for Allowance of Executor’s Personal Claim and Fixation of Attorney’s Fees. Friend L. Tuttle, Claimant and Executor-Attorney, Appellant; Frederick F. Ward and Others, Objectants, Respondents.
    First Department,
    November 4, 1938.
    
      Charles H. Tuttle of counsel [Hiram Thomas with him on the brief; Breed, Abbott & Morgan, attorneys], for the appellant.
    
      Walter H. Young of counsel [Seacord, Ritchie & Young, attorneys], for the respondents.
   Per Curiam.

While the evidence may not have supported the right of appellant to recover on an actual contract with the testator for an agreed compensation, it was clearly sufficient to justify his recovery on quantum meruit for those services performed prior to testator’s death which had not been taken into consideration in the adjustments made up to January 1, 1932.

The decree, in so far as it fixes compensation for services as attorney to the estate, is correct and should be affirmed. The decree, in so far as it denies compensation for services rendered to testator to the extent indicated and denies motion for leave to file an alternative quantum meruit claim, should be reversed, and the matter remitted to the referee who heard and reported on the case, to fix the reasonable value of such services to testator, with costs to the appellant payable out of the estate.

The appeal from the order denying motion for reargument should be dismissed.

Present — Martin, P. J., O’Malley, Glennon, Untebmyer and Callahan, JJ.

Decree, in so far as it fixes compensation for services as attorney to the estate, unanimously affirmed. In so far as it denies compensation for services rendered to testator to the extent indicated and denies motion for leave to file an alternative quantum, meruit claim, reversed and the matter remitted to the referee who heard and reported on the case, to fix the reasonable value of such services to testator, with costs to appellant payable out of the estate. Appeal from order denying motion for reargument dismissed. Settle order on notice.  