
    Matter of the Judicial Accounting of the Administrators of Lewis R. Blair, Deceased.
    
      (Surrogate's Court, New York County,
    
    
      Filed April, 1901.)
    Res Adjumcata — Payments Formerly Disallowed an Executor.
    Where the Appellate Division, upon modifying a surrogate’s decree made upon the accounting of one who had been an executor and was ousted from that office by the denial of probate to the will appointing him, has decided that he could not be allowed, as a payment, for moneys which he had merely promised, by his individual note, to pay his counsel for services rendered in the litigation concerning the will, the surrogate is bound by that decision and cannot, upon a subsequent accounting of the same person as an administrator of the same decedent, allow him said moneys as a payment, he having in the meantime paid his counsel the note.
    Proceedings upon the judicial accounting of administrators.
    Motion to confirm referee’s report.
    
      James O’Neill, for administrator Wm. Blair; Porter & Kil-vert, for contestants.
   Thomas, S.

— The claimant, William Blair, was named as executor in a testamentary paper admitted to- probate by a surrogate of this court. The decree ladmitting the will was reversed by the Appellate Division of the Supreme Court (Matter of Blair, 84 Hun, 581), and such reversal was affirmed by the Court of Appeals. Matter of Blair, 152 N. Y. 645. The letters testamentary granted to the claimant were vacated, and he subsequently accounted for his acts and doings as executor. On such accounting he asked to be allowed for moneys paid and obligations incurred by him in the litigation concerning- the validity of the will. A decree was made by the surrogate in harmony with his contention, allowing, him $2,150 paid, and the further sum of $2,700 agreed by him to be paid to counsel. Matter of Blair, 28 Misc. Rep. 611. On appeal to the Appellate Division this decree was modified and the allowance was limited to $2,150, that being the entire amount actually disbursed. Matter of Blair, 49 App. Div. 417. Letters of administration on the estate of the decedent have been issued to the claimant, William Blair, and also to William E. Blair, and both administrators are now accounting, each submitting a separate account. The claimant reasserts his claim for $2,700, which existed at the time of his accounting as executor as a claim on a promissory note, but which note he has since paid. His coadministrator resists -this claim. The learned referee deems the reasons given by the Appellate Division of the Supreme Court for its modification of the decree to be technical, and. the claim for reimbursement meritorious, and reports in power of its allowance. I cannot agree with his reasoning or his conclusion. The only title of the claimant for reimbursement for the expenses of his unsuccessful litigation rested on his office as executor and the favor of the court to protect him by allowances to him- on bis accounting as sucb executor. Tbe decree on bis accounting, as modified by tbe Appellate Division, made after be bad ceased to be an executor, was a final determination of iall questions as to permissible allowances to bim. We may not scrutinize tbe opinion rendered by tbat court, in wbicb tbe reasons for its action are given, in order to find a pretext for refusing to be bound by tbe result reached by it. It is sufficient tbat tbe judgment binds us, and tbat we are not to reassert a claim wbicb our appellate tribunal bas considered and disallowed. Tbe contention tbat some claim exists based on a natural equity against the next of bin of a decedent to require them to reimburse a person who, being a legatee and executor named in a void paper purporting to be a will, incurs expense in an unsuccessful attack on tbe rights of property of sucb next; of kin in asserting sucb void paper, does not impress me as being sound. No authority is cited in its support. Tbe following cases are to tbe contrary: Royer’s Appeal, 1 Harris (13 Penn.), 569; Andrews’ Executors v. Andrews’ Administrators, 7 Ohio St. 143. Tbe exceptions to the report of tbe referee allowing sucb claim are sustained.

Decreed accordingly.  