
    Matter of the Judicial Settlement of the Account of Charles H. Boyer and Frank W. Boyer, as Executors and Trustees Under the Last Will and Testament of Amelia S. Sherman, Deceased.
    
      (Surrogate’s Court, Kings County,
    
    
      April, 1907.)
    Executor and administrators—Eights and liabilities between representative AND ESTATE: DEALINGS OF REPRESENTATIVE WITH ESTATE-Purchase of property; Items charged or credited—Debts of personal REPRESENTATIVE TO ESTATE—PAYMENT; ALLOWANCE-COUNSEL FEES-IN PROCEEDING TO REMOVE EXECUTOR.
    Where executors successfully resist a motion to remove them from office, a' reasonable counsel fee is a proper charge of expenditure against the estate.
    Where executors sell a steamboat belonging to the estate to themselves and turn it over to a corporation which they organize, the sale is void and they are chargeable with the inventory value of the boat.
    Where executors turn a business, conducted by them and in which their decedent had considerable money invested at the time of her death, into a corporation and issue stock therein to themselves as executors, in payment of the money due by them to the estate, they will be surcharged with the amount due decedent on the day of her death with interest.
    Proceedings upon the judicial settlement of the account of executors.
    J. Stewart Ross, for executors; Chilvers & Thompson, for contestant; Pinch & Coleman, for Catherine Louise Boyer, general guardian for Adele L. Boyer.
   Church, S.

In this matter I announced my decision at the termination of the trial; but, as the official stenographer omitted to take it, I shall, for the guidance of parties, make this brief memorandum.

The objection to the $250 paid to Mr. Ross as counsel fee is opposed solely upon the ground that it is not a proper charge against the estate, the reasonableness of the amount being conceded. It appears that this was money expended by the executors in the successful resistance of a motion to remove them in their official capacity. Where an unjust attack is made upon an executor, he is authorized to recoup from the estate the necessary expenditure to which he has been put in justifying his conduct, and, therefore, this item is allowed.

In connection with the steamer “ Boyer,” the executors sold the boat to themselves and then turned it over to a corporation which they organized. In taking such a course the executors improperly dealt with the trust property and, consequently, such sale should be treated as void and the boat regarded as still the property of the estate, with which they are chargeable at its inventory value.

The deceased left considerable of her money in the firm business, which was being conducted by the executors, standing to her credit at the time of her death. The executors have turned this business into a corporation and have issued to themselves, as executors, stock of such corporation in payment of the money due by them to the estate of the deceased. In this they again violate their duty as executors and, consequently, they should be surcharged with the amount standing due to the deceased on the day of her death, with interest.

Although the executors have thus improperly dealt with themselves, I do not think they were guilty of any wrongdoing, as the deceased herself put them in a position in which they would necessarily be compelled to deal with themselves; and I have no doubt that the organization of the corporation was the best plan for the protection of the estate interests. Even if that be so, however, it is insufficient to justify the court in approving of the conduct of the executors in thus dealing with themselves ; and, therefore, the decree will provide that they be surcharged with the sums referred to, which they will hold in accordance with the trust provisions contained in the will.

Decreed accordingly.  