
    In the Matter of the Final Judicial Settlement of the Account of William McEchron and James M. Ordway, as Surviving Trustees of Clarissa Ordway, under the Last Will and Testament of Jones Ordway, Deceased. Henry A. Howard, as Executor, etc., of Clarissa Ordway, Deceased, Appellant; William McEchron and James M. Ordway, as Surviving Trustees, etc., Respondents.
    
      Surrogate—he has no power to allow to an executor hisexpemes on an appeal from a decree finally settling his accounts, which is affirmed without costs.
    
    Where a decree of the Surrogate’s Court judicially settling the accounts of a testamentary trustee is affirmed hy the Appellate Division in all respects without costs to either party, the surrogate has no authority to allow the trustee to retain; from the amount adjudged hy the decree to be in his hands, the sum paid by him to his attorney for services rendered and the expenditures incurred on the appeal.
    Appeal by the contestant, Henry A. Howard, as executor, etc., of Clarissa Ordway, deceased, from a decree of the Surrogate’s Court of the county of Warren, entered in said Surrogate’s Court on the 12th day of June, 1900, judicially settling and allowing -the account of William McEchron and James M. Ordway, as surviving trastees of Clarissa Ordway under the last will and testament of Jones Ordway, deceased.
    
      C. H. Sturges, for the appellant.
    
      Henry W. Williams, for the respondents.
   Parker, P. J.:

On January 3, 1900, these respondents obtained a final judicial settlement of their accounts before the surrogate, and he made a decree wherein he credited to them certain sums, to which the appellant then objected, and also disallowed them certain commissions which such respondents then claimed they were entitled to. Both parties appealed to this .court. This court affirmed the decree as entered by the surrogate, but without; costs to either party.

During the pendency of that appeal, the balance of the fund found by the decree to be held by the trustees for distribution under the terms of the trust remained in the hands of these respondents. After the entry of the order of this court affirming such decree the trustees presented to the surrogate a supplementary report, so called, in which they charged themselves with $2,263.26, the balance found by such decree to be due from them after paying the expense of that accounting, and also with some $26.02 as interest accrued thereon: They credited themselves with $299.05, being the' amount paid their attorneys for services and expenses upon the appeal aforesaid, leaving a balance of $1,990.23 to be distributed as required by the trust. The surrogate made a decree allowing and settling such final account and directing that the balance of $1,990.23 only be paid over by them in execution of the trust.

From the decree so made this appeal' is taken.

The decree of January 3, 1.900, was a final judicial settlement of these respondents’ accounts, and payment of the "balance therein decreed against them could have been enforced by execution (Code Civ. Proc. § 2554), and upon the payment by them of the amount so decreed the trustees were discharged from the obligations of their trust. That decree was in all particulars affirmed by this-court, and it is difficult to see upon wliat theory the surrogate could thereafter assume to correct or modify it.

It is manifest that the- decree now appealed from is nothing more than a modification of that decree.

It is true that an additional account, has been filed, and this decree purports to deal with that alone. But such so-called account is in reality no account. If new assets had been discovered and come to the hands of the trustees after the making of that decree, probably the surrogate would have had jurisdiction upon their application to have made a decree properly distributing sucli new fund, but in this new account the only charge against the trustees is the decree of January 3, 1900. ' Against the balance finally fixed by that decree and by the judgment of this court, a new credit is given to the trustees by the decree in question, and that is all there is of the so-called supplemental account. The sum which this court has adjudged to be properly chargeable against these trustees has been lessened by a decree of the surrogate to the extent of $299.05. Such a decree he was without authority to make. (Reed v. Reed, 52 N. Y. 651; Hone v. De Peyster, 106 id. 645, 649; Sheridan v. Andrews, 80 id. 648.)

It is urged that the trustees, having actually disbursed this amount as a necessary expense incurred in sustaining the decree on appeal, they have the right to be indemnified for it out of the trust fund, and, therefore, have the right to apply to the surrogate for leave to charge it up against the balance which this court has fixed against them.

But whence does the surrogate acquire jurisdiction to entertain such an application ?

Upon a final settlement of a trustee’s accounts the surrogate is given authority to allow certain costs and reasonable expenses incurred. (Code, §§ 2561, 2730, 2810.) So after an appeal has been, taken from his decree, the appellate court may direct that the costs of the appeal shall abide the result of further proceedings to be had before him, and except so far as that court has made specific directions concerning them, upon the rehearing the surrogate has jurisdiction and discretion as to costs. (Code, § 2558.) But where upon appeal from his final decree the appellate court in all respects affirms it, costs are awarded by the appellate court only (Code, § 2589), and thereafter I cannot find that the surrogate is given any authority over the matter.

It is claimed that this is not a question of costs, but of expenditures necessarily incurred. But I cannot discover that he has any jurisdiction to take cognizance 'of, or make further order concerning any expenditures made by the trustees in the matter' of such appeal. He has rendered his final judgment upon their accounts and upon all expenditures made up to that date. These further expenditures claimed were made after the matter has left his court, and in a proceeding over which the appellate court has the entire jurisdiction, and I find no authority given him to entertain any motion concerning them.

But more than this, in the case before us this court expressly held that the trustees should not have any “costs”' of this appeal. “ Costs ” include certain sums allowed by the Code to a party for the purpose of reimbursing him for amounts paid to his attorney, and also certain disbursements specified in section 3256 of the Code, and a judgment to the effect that trustees shall not have any " costs ” on an appeal is also to "the. effect that' they are not. entitled to be reimbursed for the sums paid to their attorneys’on the - appeal. In the face of such a judgment of the appellate court, an order of the surrogate authorizing the trustees to retain from the balance adjudged against them a sum sufficient to pay their attorney's fees upon Such appeal is not only without jurisdiction, but it is in direct conflict with the judgment of the appellate court, and for that rea.son should not be allowed to stand.

The decree appealed from is reversed, with costs.

All concurred, Smith and Kellogg, JJ., on ground last stated.

Decree reversed, with costs payable by the respondent personally.  