
    In the Matter of Proving the Last Will and Testament of William O’Brien, Deceased, and the Judicial Settlement of the Accounts of his Executors.
    
      (Court of Appeals,
    
    
      Filed March 19, 1895.)
    
    1. Surrogate—Discretion.
    Where the surrogate has exercised a fair and reasonable discretion in regard to an allowance and refused to grant it, and his decree has been affirmed by the general term, the court of appeals will not interfere with it.
    3. Appeal—Waiver.
    Where á decree of the surrogate is in the alternative, providing for the revocation of letters testamentary, unless the executors pay the disbursements and file a bond, which they do, and go on and perform their duties as executors, they cannot thereafter appeal from the decree or order.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order which affirmed a decree of the surrogate of Rensselaer county settling the accounts of the executors of the last will and testament of William O’Brien, deceased.
    
      Milton A. Fowler, for app’lt; C. B. Herrick, for resp’t.
   Peckham, J.

We think the judgment in this case should be affirmed. The surrogate referred certain questions arising upon the presentation of the final accounts of the executors to a referee to take the testimony and report the same to the surrogate witli his opinion thereon. The referee did so and reported in favor of paying the executors a certain amount, including sums which they claimed to be liable for to their counsel for services rendered them as executors in the course of the administration of the estate. The referee made certain findings which upon the return of the testimony to the surrogate were not sustained by that officer, but other findings were made. There is really no dispute in regard to the evidence, and the surrogate found facts by reason of which he refused to allow the executors the sums which they claimed to be liable to pay to their counsel as above stated. It appears from these findings that proceedings were taken by some of the legatees before the surrogate to revoke the letters testamentary of the executors on the ground that their circumstances were such that they did not afford adequate security to the persons interested iu the due administration of the: estate. Subd. 5, § 2685, of the Code Civ. Pro.

A citation-was issued by the surrogate to the executors to show-cause why their letters' testamentary should not be revoked, and .in that order to show cause they were enjoined from acting as executors until the determination by the surrogate- of the application of such revocation. The executors showed cause by written answers and the issues raised! therein were settled by the surrogate and referred to a referee for the purpose of taking testimony, and upon the return and presentation of such testimony the surrogate decided to revoke the letters of the executors unless- they gave a bond in an amount stated, under the authority of subdivision 3 of § 2687 of the Code. The surrogate also charged the executors with the amount of the disbursements of the petitioners. The executors subsequently complied' with the decree of the surrogate and gave the bond and went on witli the discharge of their duties. When the question upon their final account came up the executors claimed the right to be credited in their accounts with the amounts which they alleged they were liable to pay to their counsel- for services performed for the executors during the time when the latter were enjoined from performing any duties as executors, and also for the services rendered by their attorney for them in resisting the application of the petitioners toi revoke- their letters testamentary, which resulted in the granting of the application unless the executors gave the bond as above mentioned. The surrogate found that this application was unreasonably resisted and that the executors were not entitled to an allowance for services of counsel to them in that proceeding, nor while they continued to act as executors while the order restraining them from so acting was in existence. It also appeared in the evidence and was found by the surrogate that the counsel fees for these services had not as matter of fact been paid by the executors at the time that they rendered their account, although they were liable therefor, as they claimed, and although it appeared that the amount claimed by such counsel' was not more than the services were fairly worth, the surrogate holding that by reason of the statute .and of the limited jurisdiction of his court, he was only permitted to allow the executors on their final accounting such sums as they had actually paid, and he cited authorities which he claimed were to that effect, and which are to be found in the brief of the counsel for the respondents. The right to make allowances to executors for sums paid to counsel is granted by chapter 686, Laws of 1893, p. 1707, which amends § 2730 of the Code of Civ. Pro., and provides upon the settlement of executors’ and administrators’ accounts for the making of allowances for such actual and necessary expenses as shall appear just and reasonable to the surrogate.

We should have great hesitation in affirming the correctness of these views of the surrogate. We aré not prepared to say that in no case can a surrogate make an allowance for the services of counsel to an executor of an estate for which such executor is liable, although he has not as yet actually paid the money. Of course, the fact of his liability would not be conclusive upon the surrogate nor upon the amount thereof as claimed by the attorney or admitted by the executor. It would seem to be a matter for the surrogate’s determination as to the reasonableness and propriety of the claim, and that should be determined after an examination into the facts and circumstances of the charge to such an extent as might be necessary. We do not discuss the question further nor express a final opinion upon the matter, because the surrogate has found other facts which are entirely sufficient upon which to base his judgment, those facts being that in his judgment, while the executors were enjoined from acting as executors, there was no reason or propriety in their incurring expenses by way of professional advice in regard to the estate, and that so far as concerns their claim for payment to counsel of funds of the estate for services performed by counsel in resisting the application for the revocation of the executors’ letters testamentary, their resistance was unreasonable and formed no ground for an allowance to pay any claim for professional services rendered them upon such resistance. These were matters upon which there was evidence which called upon the surrogate for the exercise of a fair and reasonable discretion in regard to such allowance, and he having exercised it and refused to grant snch allowance, and his decree having been affirmed by the general term, it is not a case for us to interfere. The appeal on the part of the executors to this court does not bring up the order made by the surrogate referring the issues upon the application to revoke their letters, nor does it bring up his action decreeing such revocation unless a bond were given and the costs by way of disbursements by the petitioner paid "by the executors. There are several reasons why they were not brought up by the attempted appeal. A conclusive one is that the decree of the surrogate was in the alternative granting the petition and providing for the revocation, unless the executors paid the disbursements and filed a bond. This they did, and went on and performed their duties as executors. They could not thereafter appeal from the decree or order.

On the whole we think the judgment of the court below was right, and it must be affirmed.

All concur.

Judgment affirmed.  