
    MUNSON a. HOWELL.
    
      Supreme Court, Seventh District;
    
    
      General Term, Sept., 1860.
    Executors and Administrators.—Reference of Disputed Claims.—Costs.
    A reference of a disputed claim against the estate of a deceased person, had pursuant to the provisions of the Revised Statutes (2 Rev. Stat., 88, §§ 36, 37), by filing the stipulation and entering a rule to refer, is to be deemed an action, with the usual incidents thereof.
    The filing of the agreement and entry of the order to refer a claim against the estate of a decedent, is equivalent to a voluntary appearance on the part of the claimant; and, if he fails to recover, he is liable for costs as in an action, as much as other parties in actions.*
    * The decisions upon this question are conflicting, but the weight of authority is with the case above. In Lansing a. Cole, (3 Code R., 246), it was held by the Supreme Court at special term, in the third district, in 1851, that these proceedings upon the reference of a claim against an executor or administrator, are a suit at law, within the meaning of section 41 of the same title; and where judgment is recovered on such a reference against the executor or administrator, costs do not follow unless it is shown that defendant unreasonably resisted. The mere fact that on the reference he gave no evidence controverting plaintiff’s claim is not enough.
    Section 317 of the Code ddes not alter this rule, except so far as to allow the prevailing party to recover disbursements.
    Appeal from an order, made at special term, affirming an adjustment of costs by the clerk.
    James L. Munson, the plaintiff in this proceeding, presented a claim to T. M. Howell and others, who were administrators of the estate of one Mallory, deceased ; and they disputing the claim, it was agreed that it should be referred under the' statute (2 Rev. St at., 89). The referees reported against the claimant, and the defendants entered up judgment for costs as in an action.
    The adjustment of costs having been confirmed by the court at special term, on appeal from the clerk, the plaintiff appealed to the court at general term.
    Soon afterwards the contrary doctrine was ruled at special term, in the second and fifth districts, in the cases of Van Sickler a. Graham (7 How. Pr., 208), and Avery a. Smith (9 lb., 349), where it was held that such a reference is not an action; that the executor, therefore, on prevailing, could only recover disbursements.
    These cases were/however, disapproved in 1857, in the third district at special term, in the case of Linn a. Clow (14 How. Pr., 508). In that case it was held that the court has power, upon confirming the report of referees in proceedings under this statute, to adjudge costs as well as disbursements against executors and administrators, as in an action under the Code; that in such case the question is, whether, the demand having been duly presented, its payment has been unreasonably resisted or neglected. Where this has been done, it is enough for the court to see that, had an action been brought, it might have awarded costs to the successful party; and precisely the same costs may be adjudged upon the reference without action, as if an action had been brought. Section 317 of the Code, which entitles the successful party to recover^ his disbursements, cannot be regarded as affecting the power of the court in proper cases to award costs, as in an action, to the prevailing party. This provision was only intended to secure the party his disbursements, in all cases, without regard to the exercise of the discretion vested in the court to grant or withhold costs.
    ' The case of Boyd a. Bigelow (14 Hoto. Pr., 511), which turned on the question whether a judgment in these proceedings was appealable, was determined in consonance with the same view.
    It has been held, however, that the creditor is not entitled to costs of the reference where it does not appear that the agreement to refer was filed and the order entered. (Supreme Cl., Bp. T., 1851, Comstock a. Olmstead, 6 How. Pr., 77.)
    
      
      Mr. Cheesbro, for the appellant.
    
      Morse & Mason, for the respondents.
   By the Court.—E. Darwin Smith, J.—Section

—Section 41, of chapter 8, part 2, of the Revised Statutes (2 Ben. Stat., 4 ed., 224), provides that if executors or administrators doubt the justice of any claim presented to them, they may enter into agreement in writing to refer the matter in controversy to three disinterested persons, to be approved by the surrogate, and that on the filing of such agreement and approval in the office of a clerk of the Supreme Court, a rule shall be entered by such clerk, either in vacation or in term, referring the matter in controversy to the persons selected.

The next section provides that the referees shall proceed to hear and determine the matters, and make their report thereon to the court, and that the same proceedings shall be had in all respects, and the reference shall have the same force, as if the reference had been made in an action in such court; and the court may set aside or affirm such report, and adjudge costs as in actions, and the judgment of the court thereupon shall be as valid as if the same had been rendered in a suit commenced by the ordinary process. Under these provisions of the statute, after the filing of the stipulation, and the entry of the rule to refer, I have no doubt that the proceedings should be deemed an action pending, or prosecuted, in this court, with the usual incidents thereof, except as the same is otherwise expressly regulated by the statute. This court thereafter has jurisdiction of the parties and of the proceedings, in the same manner, and to the same effect in all particulars, as in actions formally commenced by summons or otherwise. Such was the obvious intent and meaning of the statute. The filing of the agreement with the approval of the surrogate is a voluntary appearance in this court, and is in effect a mode of commencing an action therein, authorized and prescribed by the statute. The plaintiff having in this mode commenced an action in this court, is liable for costs in case he fails to recover, as much as all other parties in actions commenced and pending in this court. Executors and administrators are, to a certain extent, privileged suitors in the courts. They act in a representative capacity, haring no personal interest in the litigation in which they are liable to be involved, and it is the policy of the law to exempt them and the estates they represent from costs, except when they refuse to refer demands presented to them, or unreasonably resist or neglect their payment. But I know of no provision of law which makes parties suing executors or administrators, privileged suitors. There is no reason why they should be so. Indeed the reason is the other way. If they make a false claim against executors or administrators, more than in other cases, they should be liable for costs when they are defeated in the assertion of such claim. Section 305 of the Code gives costs to the defendant in all the cases mentioned in section 304, unless the plaintiff is entitled to costs. The plaintiff in this case, if he were suing any person but executors or administrators, would be liable to costs. But section 317 declares, that in actions prosecuted or defended by an executor or administrator, trustee of an express trust, or person expressly authorized by statute, costs shall be recovered as in an action by and against a person prosecuting or defending in his own right. This portion of the section clearly gives costs to both parties as fully as in all other actions. But the next portion of the section declares that such costs shall be chargeable only upon, or collected of, the estate, fund, or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant personally, for mismanagement or bad faith in such action or defence. This portion of the section obviously applies only to the party suing or being sued in the„ representative capacity, and has no reference to the opposite party. The next portion of the section declares that the same should not be construed to allow costs against executors or administrators where they are now exempt therefrom, by § 41, of title 3, chapter 6, of the 2d part of the Revised Statutes. This provision shows that it was not the intention of the Legislature to change the rule of costs in these cases, but to leave both parties liable for costs, as before the Code, except as. such rule is altered in the next portion of the section, giving to the prevailing party the right to recover the fees of referees and witnesses, and other necessary disbursements.

We concur with the judges of the eighth district, in the case of Boyd a. Bigelow (14 How. Pr., 511), and with Judge Harris, in Linn a. Clow (14 Ib., 508), on this question of costs. The defendants were clearly entitled to costs, as in an action, and the order of the special term should be affirmed, with $10 costs.

Judgment affirmed. 
      
       Present, E. Darwin Smith, T. A. Johnson, and Knox, JJ.
     