
    GEORGE McGOVERN as Temp. Adm’r, Appellant, v. MARGARET D. McGOVERN, Respondent.
    
      Decided June 16, 1884.
    
      Costs—when temporary administrator chargeable with.
    
    Where property which had belonged to the deceased and was in his possession within a short time of his decease, is immediately thereafter in the possession of his widow, and when the same is demanded by the temporary administrator, appointed under a will in which he is named as executor, but is not otherwise interested, the widow claims the ownership thereof, but does not explain the transaction or the manner or time of the transfer to her, and it does not appear that the administrator was cognizant of said facts, he should not be charged personally with the costs of an action to test the title of the property, in which the widow proves title by gift from her husband.
    Plaintiff in such a case, having been duly appointed temporary administrator under the will, the probate of which is contested by the widow, allegations as to his improper conduct, in inducing the testator to make the will, cannot be considered on such an application to charge him with bad faith. (Sedgwick, Oh. J.)
    Though the widow swears before the action, e. g., in an examination to enable a complaint to be framed, what the transaction was by which she obtained title, it does not necessarily show bad faith or mismanagement that the administrator disbelieves the statement of an interested party. (Sedgwick, Oh., J.)
    Defendant failing in such a case, to move for security for costs under section 3271 of the Code, plaintiff should be charged therewith only on clear proof of bad faith. (Ingraham, J.)
    Before Sedgwick, Ch. J., and Ingeaham, J.
    Appeal from order, directing that the costs of the action should be paid by the plaintiff personally, under section 3246 of the Code of Civil Procedure.
    
      It appeared that Daniel McGovern, the plaintiff’s testator, was in his lifetime a liquor merchant, carrying on business at the city of New York, and reputed to be a man of means. At the time of his death he was apparently in possession of a large stock of goods and a valuable good will, the sign over the door of the place of business being in his name, as were also the licenses under which the business was transacted. He left a will which was duly propounded for probate. The plaintiff, who was named as executor, endeavored to take an inventory of the estate. The defendant, his widow, refused to permit him to do so, claiming that the deceased had left no property or estate whatsoever. Thereupon, alleging the facts that the defendant threatened to contest the probate of the propounded will, plaintiff applied for and was granted letters of temporary administration. After such appointment tlie plaintiff again demanded possession of the property, which was refused. Defendant then moved to set aside the letters of temporary administration and the motion was denied. Plaintiff then instituted proceedings for the discovery of asset's of the deceased pursuant to the provisions of the Code (§ 90). Defendant claimed to be the owner of the property and the proceedings were dismissed for want of jurisdiction. Thereupon this action of conversion was brought to test the title to the property, in which action defendant claimed title by gift from her husband, and recovered a verdict.
    Defendant’s affidavits on this motion, to show bad faith, etc., among other things, alleged that the will provided that certain legacies should first be paid to plaintiff’s mother and sister, and thereafter a legacy to defendant; that the plaintiff personally had had the paper drawn, and procured a letter from the deceased’s physician advising the deceased’s being taken out to ride often ; took him out to ride on the day the paper was signed, when the deceased had to be carried to the carriage, and at a saloon on the Boulevard had the deceased’s cross put to the will, which he witnessed, and which will was not brought to the attention of the widow of the deceased until after the death of the said Daniel McGovern ; that at the time of the commencement of this action the plaintiff was not in possession of any property belonging to the estate.
    
      E. J. Myers, for appellant.
    There must be some specific cause or circumstances upon which the court convicts the plaintiff of bad faith in the prosecution of the action, to charge him with costs (Slocum v. Barry, 38 N. Y. 46).
    It was plaintiff’s du’ty to take possession of the personal property of the intestate ; to secure and preserve it, and to collect choses in action (Code Civ. Pro. § 2671; Redfield Sur. Pr. 349, 2d ed).
    The temporary administrator was in the honest discharge of his duty bound to bring this action (Schultz v. Pulver, 11 Wend. 312).
    It must be shown that plaintiff was influenced by some corrupt motive, or that his action was due to some undue interest in the proceeding.
    The motion was improvidently granted by the special term without a certificate by the trial term justice of the facts which bore on the question of bad faith (Parkhill v. Hillmann, Admr., 12 How. 353 ; Mersereaux v. Ryers, 11 How. 300).
    Turner, Lee & McClure, for respondent.
   By the Court.—Sedgwick, Ch. J.

The effort by defendant to show that the plaintiff had acted improperly in respect of the paper proposed as the deceased’s last will, cannot be considered on this appeal. The surrogate, with competent jurisdiction, thought it right to appoint the plaintiff to be the temporary administrator, and it became the duty of the latter to bring actions for the protection of the estate. The facts were that a large quantity of property that had belonged to the deceased and was in his possession within a short time before his death, was after his death in the possession of the defendant, and was claimed by her to be her own. It does not appear that she ever explained the transaction or the manner or time of transfer to her, or made a specific statement as to her kind of title. The only opportunity that the papers show the plaintiff had of learning this, was upon an examination of the defendant by the plaintiff, to enable him to draw his complaint. On that examination, when the questions approached an inquiry as to defendant’s title, the plaintiff’s counsel objected that the order for examination confined it to the defendant’s knowledge of the property, and all outside of that was objected to. When a question was asked whether the defendant had checks from the deceased in July, the defendant’s counsel objected, whether correctly or not need not be determined, or gave notice that the question was within the rule as to communications with a deceased person. The practical effect of this was to stop a line of questions that if followed, vrould have given the defendant power to be a witness as to the transfer to her.

Or, if she had stated under oath what the transaction was, it cannot be determined as the case stands, that it would have been bad faith or mismanagement on plaintiff’s part to have disbelieved'the statement of an interested party.

The case was unusual, and it does not appear that the plaintiff could have fully performed his duty without subjecting it to the test of litigation. For these reasons, my opinion is that the order should be reversed, and the motion below denied, with $10 costs and disbursements to be taxed.

Ingraham, J.

[Concurring.] The plaintiff was not personally interested in the result of the action, and in order to charge him personally with costs, it must appear that he was guilty of mismanagement or bad faith in the prosecution of the action (Code, § 3246). There was a substantial dispute between the legatees under the will and the defendant, as to the title to the property. Plaintiff was acting for the legatees under an appointment of the surrogate, and from the facts as they appeared prior to the trial, plaintiff, cannot be charged in prosecuting this action to test the defendant’s title to the property with bad faith.

• Defendant could have applied under section 3271 of the Code, to require plaintiff to give security for costs, and having failed to make such application, should not be allowed to compel plaintiff to pay the costs of an action which he was prosecuting for the benefit of others, without clear proof of bad faith I concur, therefore, with the chief judge that the order should be reversed.  