
    In the Matter of the Judicial Settlement of the Accounts of John C. Spooner, as Administrator, etc.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1895.)
    
    Executors—Accounting.
    An allowance for counsel fees can in no event be made to the representative until lie has actually paid them.
    Appeal from a decree, rejecting certain counsel fees and charges.
    
      J. Rosencrans, for app’lt; J. F. Parkhurst, for resp’t.
   Ward, J.

Dan E. Spooner died about the 23d of July, 1871, leaving a last will and testament. John McDougall, of Hornellsville, was appointed executor of said will, and qualified as such, ■and discharged his duties until his death, which occurred on the 12th of November, 1888. Jane McDougall and Shirley E. Brown were appointed his administrators. Spooner left, him surviving, his mother, brother, who is the present administrator, and Cornelia Spooner, a widow, who is the respondent here. They were all legatees under the will. The executor paid the legacies to the mother and brother, and the interest on the legacy of the widow down to the time of his death. The widow, by the will, was given the interest on $6,000; the fund to go to appellant upon the death -of the widow. The administrator of McDougall paid the interest to the widow until November 1, 1890, when the appellant was appointed administrator with the will annexed. He then resided at Auburn, in this state. He retained counsel there in the matter (Mr. Rosencrans). .The administrators of the McDougall and the appellant adjusted the matter of the legacy, and agreed that $6,000 belonged to the estate of Dan E. Spooner. The appellant claimed the custody of the fund, and that it should be paid over to him, and he paid the widow the interest. The widow refused, and the matter was submitted to the surrogate’s court of Steuben county, ■and that court held that the appellant was not entitled to the custody of the fund. From that decision the appellant appealed to the general term, where the surrogate was sustained. The appelant further appealed to the court of appeals, where-the decision of surrogate and the general term was reversed, with costs in favor of the appellant, and the court of appeals directed the surrogate that, “if the administrator had made any disbursements or incurred any obligations for which the estate was properly chargeable, he should have the opportunity of proving the facts, and having a ■decree made for their payment out of the estate.” Rosencrans was the attorney who conducted the appeals for John 0. Spooner. After the entry of the court of appeals judgment, Mr. Rosencrans rendered bill against the administrator, commencing with Noverm ber 14, 1890, and ending with February 20, 1894, amounting to $1,023.35, general term and court of appeals, $150 of which was ■denominated “counsel fee at general term and court of appeals.” There was charged in this account for ten trips going from Auburn to Bath, and once to Horn ells vil le, for twenty-two days’ service, at $15 per day, amounting to $330. Twenty dollars is charged for making brief on settlement. Thirty dollars is charged for ‘‘making brief on accounting.” Fifty dollars is charged for “counsel.” Seventy-six dollars and sixty-seven cents is charged for expenses of this attorney in these various trips. There does not seem to have been any serious controversy until the question arose before the surrogate as to who wits entitled to the fund of $6,000. That controversy as before said, went through to the court of appeals, for which the said attorney collected the taxable costs, he being successful. What the $150 counsel fee or the $50 counsel fee was for does not distinctly appear, except, generally, that Mrs. Rosencrans claimed them, and they were allowed to him. After the decision of the court of appeals, evidence was taken before the surrogate as to these claims. The appellant and his attorney were sworn as witnesses. I cannot find from a close examination of the papers that the administrator had paid any of these claims to his attorney. The surrogate, after a careful examination of the claims, allowed $35 for going to Bath and Hornellsville on the first occasion, where the attorney had charged $60, and allowed $60 for the services of the attorney upon the accounting, and also allowed the $150 counsel fee, which should also cover certain items in the charge; allowed the $76.67 expenses that the attorney claimed he had incurred. A former decree of the surrogate’s court had allowed Rosencrans $50, which covered some of the services charged in the bill; so that altogether the attorney had received, besides his expenses of $76.67 and besides the costs on the appeals, $295, making a total of $586.68 besides expenses. The surrogate deemed this a sufficient compensation for all the services and expenses of the attorney, and rejected the rest of the claim. The surrogate also allowed the travelling fees and expenses of the administrator, himself, of $59.63, in and about this business.

The expenditures to be allowed in such cases by the surrogate must be reasonable and necessary, of which the surrogate must necessarily be, to a a great extent, the judge. He is familiar with the services rendered, their character, and the necessity for them. The rule is well settled that in no event can an allowance be made to a representative for an administrator’s expenses—e. g. counsel fees—until it is actually paid. Redf. Law & Frac. Sur. Cts. 444; In re Bailey's Estate, 47 Hun, 477 ; 14 St. Rep. 325 ; Shields v. Sullivan, 3 Dem. Sur. 296. Only the allowance that the surrogate makes under sections 2561 and 2562 of the Code of Civil Procedure can be allowed the administrator until he has actually paid the expenses for which he claims. It will be seen, therefore, that ■ all of this account, except upon judicial settlement, must have been paid by the administrator before he is entitled to be reimbursed ; but, waiving this question, we think, upon the proof before us, that the surrogate allowed all that was reasonable and just upon this bill.

The decree of the surrogate of Steuben county is affirmed, with costs to the respondent, to be taken out of the corpus of the fund owned by the administrator and appellant.

All concur.  