
    Adaline Matson et al., Resp’ts, v. Louise J. Abbey, as Admr’x, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 30, 1894.)
    
    
      1. Costs—Executors, etc.
    Costs cannot be awarded against an executor or administrator without a certificate of the trial judge showing the facts upon which such an award must be based.
    2.
    The conclusions of the general term stated and concurred in.
    Appeal from judgment of the general term of the supreme court in the third judicial department entered upon an order made July 8, 1893, which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at circuit without a jury.
    This action was brought to recover $2,000, the amount of a policy of insurance upon the life of Austin Matson, Jr., with interest.
    The policy was procured by the father of the insured and was -payable to him, his executors or assigns. He died December 1, 1864, and by his will devised and bequeathed the whole of his estate to his executors in trust, and directed them to apply the rents and income to the support of his widow and his daughter Emily, during life or until the death of the widow, the principal then to be divided between his children. He also directed that the yearly premium on said policy should be paid by his executors in case the insured did not pay it, such payments to be charged as advancements upon his share. The son died February 19, 1866, and the policy was thereupon collected by the executors of the father.
    The widow of the testator died June 15, 1891, and defendant was, on July 13, 1891, appointed administratrix with the will annexed. On January 27, 1869, the children and devisees of Austin Matson, Sr., by a sealed conveyance, assigned all their interest in the moneys collected on the policy aforesaid to the plaintiffs, the widow and children of'Austin Matson, Jr. It was shown on the trial" that defendant, as administratrix, received of personal estate $8,534.26, and no debts against the estate were alleged or proven. Prior to the commencement of this action a demand was made by the plaintiffs from defendant for the sum of $2,000 out of the estate of Austin Matson, Sr., so assigned to the plaintiffs, and payment was refused.
    Further facts are stated in the opinion.
    
      A. T. Clearwater, for app’lt; Martin I. Townsend, for resp’ts.
    
      
       Modifying 53 St. Rep., 794.
    
   Finch, J.

We adopt the opinion of the general term upon the main questions involved in this appeal, deeming it unnecessary to repeat the reasons very fully and correctly assigned. That court held that there was a valid gift of the right to the fund realized upon the life policy by force of the delivery of the assignment or deed of gift; that it could not be revoked, but vested in the donees subject to the life interest of the widow; that the cause of action matured at her death, and so was not barred by the statute of limitations; and that the action, if not necessary, was at least proper and not prematurely brought. We concur in those conclusions which settle in favor of the plaintiffs the substantial points of the controversy.

But there is a minor question relating to the award of costs against the administratrix which, we think, was wrongly decided. Such costs were awarded without any certificate or finding of the trial judge showing the facts upon which the award was founded. The Code (§ 1835) forbids the allowance of costs in an action brought against an executor or administrator in his representative capacity except as prescribed in the next section. That permits such an award where it appears that the claim was duly presented, that its payment was unreasonably resisted or rejected, or that there was a refusal to refer. Since these facts in whole or in part depend upon circumstances outside of the litigation and not within its issues, the section further provided that the facts must be certified by the judge or referee before whom the trial was had. Such a certificate is, therefore, the necessary basis of the award, and without it the facts cannot fully appear. The evidence on the trial and its result may be taken into account, but cannot serve without the prescribed certificate. That was asserted as the correct rule of practice in Wray v. Halliday, 3 Month. L. Bul., 98, and we concur in the opinion. The obvious purposes of the two sections of the Oode referred to can only be fully accomplished in that way.

The judgment rendered by the trial court should, therefore, be modified by striking out the aw.ard of costs in the trial court, and? as modified, should be affirmed, with costs to the plaintiffs in this court. The costs awarded on appeal to the general term we do not disturb.

All concur..

Judgment accordingly.  