
    In the Matter of the Final Judicial Settlement of the Account of Mary M. Ordway, as Administratrix, etc., of James M. Ordway, Deceased. Mary M. Ordway, Individually and as Administratrix, etc., of James M. Ordway, Deceased, Appellant; Sarah Middleworth, Respondent.
    Third Department,
    March 10, 1909.
    Executor and administrator — suit to compel performance of a contract of adoption — expenses, to whom payable — commissions.
    Where an action to compel the specific performance of the contract of a decedent to adopt the plaintiff is defended by the administratrix, and the result would only 'determine whether the estate, the amount of which was not affected by such action, should go to the plaintiff or to the administratrix individually, or what proportion should go to each, the expenses incurred by the administratrix in the litigation are not chargeable against the estate.
    Where it appears that the securities belonging to the estate were in the keeping of the administratrix, and all moneys were deposited in her name, and that what she did with reference to the action to compel the specific performance of decedent’s contract with the plaintiff therein and with reference to insisting that the expenses, of defending the suit were chargeable to the estate was done under advice of counsel, and her administration o£ the estate was without loss, she cannot he deprived of her commissions. .
    Appeal by Mary M. Ordway, individually and as administratrix, etc., from portions of a decree of the Surrogate’s Court of the county óf Washington, entered in said Surrogate’s Court on the 10th day of June, 1908.
    
      Henry W. Williams, for the appellant,
    
      Erskine C. Rogers, for the respondent.
   Chester, J.:

We agree with the learned surrogate that the counsel fees and expenses incurred by the appellant in the action of Middleworth v. Ordway were not proper charges against the estate of the decedent. That action was one brought by the respondent here, Mrs. Middle-worth, against the appellant and the heirs at law of said decedent to compel the specific performance of a contract made between the father of Mrs. Middleworth, when she was an infant fifteen months old, under the terms of which the decedent agreed to adopt her as his child, and give her. the same right in his property as though she were his own child. In that case one of the issues was as to whether or not Mrs. Middleworth as she claimed was. entitled to two-thirds of the personal and all of the real estate subject to dower.. Mrs. Ordway defended against that claim and the court held that, inasmuch as she did not sign the contract in question, she was not bound by it, and, therefore, she was entitled to one-half instead of one-third of the personal property; in other words, that she was entitled to the same rights in the property of her husband as though the contract had not been made. (See Middleworth v. Ordway, 117 App. Div. 913; affd., 191 N. Y. 404.) It was shown upon this accounting that the heirs at law and next of kin of the decedent had joined in an irrevocable power of attorney to Mrs. Ordway’s attorney in .that suit to sell and convey to her all their interest in the real and personal property owned by the decedent at the time of his death. It thus clearly appears that the suit was one defended by Mrs. Ordway for her own benefit, and not for the benefit of the estate of her husband. J7o outcome of that suit would in anywise affect the amount of the estate, but it would' only determine whether the estate should go to Mrs. Middleworth or to her, or what proportion of it should go to each. It is clear, therefore, that the surrogate properly disallowed as charges against the estate all the expenses incurred by Mrs. Ordway in that litigation.

We think, however, that the surrogate erred in disallowing Mrs. Ordway her commissions as administratrix. This was done apparently on the theory that she» was incapable of acting as such, and that she performed no duties. ' The trust was, however, conducted in her name. While it appears from her testimony that she had no clear appreciation, at the time she was sworn, of the duties incumbent upon her, and said at one place that she did not know that she was appointed administratrix, yet the evidence, as a whole, showed that she had been duly appointed as administratrix, and acted as such, and employed an attorney, and relied upon him to guide her in administering the trust; that she had signed checks from timo to time, and that she had consulted with him all along, and followed his advice. She was a woman of advanced years, and, at the time of the hearing, feeble in body and mind, yet it does not appear that any one attempted to remove her from her office because of her incapacity, and the trust appears to have been faithfully administered without any loss of any kind to the estate. The securities were nominally in her keeping, and the moneys were deposited ip her name. What she did with reference to the suit of Middleworth v. Ordway, and with reference to insisting that the expenses there incurred were properly, chargeable against the estate, was done under the advice of counsel. Hothing appears indicating that all her acts in relation to the estate were not performed in good faith. In the objections filed to her account no question is raised about her right to the commissions allowed by law, and that matter was not made the subject of testimony on the hearing! Her counsel insists that he did not know that the claim was made until the decision was rendered. If the matter had been a subject of testimony on the hearing it might have appeared that she performed many acts during the years she served as administratrix in fulfillment. of the trust, which are not shown upon this record, nevertheless^ we are of the opinion that nothing does appear here which should fairly deprive her of the commissions allowed bylaw. We think, therefore, that the decree should be modified by allowing such commissions, and as modified affirmed, without costs to either party.

All concurred.

Decree modified by allowing commissions to the appellant, and as so modified affirmed, without costs to either party.  