
    
      In re Laramie.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    1. Courts—Jurisdiction—Legitimacy.
    The surrogate’s court, having power to determine who are the proper distributees of an estate, has, in that connection, power to inquire into the legitimacy of children.
    ■2. Executors and Administrators—Settlement—Costs.
    Where a contest, on final settlement of an estate, between a legitimate child of the deceased and other children alleged to be illegitimate, was set in motion in good faith by the administrator, who merely called the court’s attention to the question, the costs of a special guardian appointed for the children should not be charged against the admiMstrator’s share in the estate.
    Appeal from surrogate’s court, Kings county.
    In the matter of the final judicial settlement of the account of Benjamin
    Laramie, as administrator of Harriet M. A. Laramie, deceased. On report
    
      of a referee the court distributed the estate as follows: One-tliird plus commissions to the administrator, as the husband of deceased; two-thirds to Rufus B. Laramie, as her only legitimate child; and all the costs of a contest between the children of deceased were charged to the administrator personally. He appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      W. Chas. B. Thornton, for appellant. Francis Speir, Jr., (John Oscar Ball, of counsel,) for respondents.
   Barnard, P. J.

The case shows that Benjamin Laramie was appointed by the surrogate of Kings county administrator of the estate of Harriet M. A. Laramie, his wife. The administrator petitioned for a judicial settlement of his account. By his petition the administrator stated that certain infants were among those interested in the estate. These infants were cited to appear at the accounting, and subsequently to the return of the citation the surrogate appointed a special guardian for them to take care of their interests on the final settlement. Objections were taken to the account, and the proceedings were referred to John A. Kemble, referee, to hear and determine all matters arising upon the settlement of the account. Among the items contested was a payment of $250 by the administrator to his attorney. The evidence shows that the administrator agreed with his attorney to pay $250 for obtaining the money from England, which constituted all the estate. It was a legacy due the deceased, and amounted to $683.99, and was from the estate of Elizabeth Weeks. The evidence shows that $250 was a reasonable charge for the work done, and that sum should have been allowed by the referee.

The only other question litigated on the trial was whether the young children were distributees. Laramie was married to the deceased, and by her he had children, one of whom, Rufus B. Laramie, alone survives. In 1861 Benjamin Laramie enlisted first in the army and then in the navy. On his return he found his wife had one young child; that she was living with one Joseph Young, and by him had these disputed children. The referee has found them illegitimate. The objection is taken that the question of the legitimacy of the children exceeds the power of the surrogate’s court. The point does not seem to be well founded. The power to determine who are the proper distributees is inherent to the power to settle and account and distribute the estate. It is also held to exist by adjudged cases. Riggs v. Cragg, 89 N. Y. 479; Purdy v. Hayt, 92 N. Y. 446; Re Verplanck, 91 N. Y. 439.

There is nothing in the evidence which shows that the costs of the special guardian, or of the attorney for the legitimate child, should be charged against the husband’s share, as he was left to pay his own costs. The special guardian, who was as well the special guardian of the legitimate child as of the illegitimate children, should equitably be paid out of the share of the legitimate child. The contest was between these children, and there is no proof showing bad faith or unreasonable contest upon the part of the husband of the deceased. He presented the question to the surrogate’s court, and that is all. The contest was taken up by the child against his illegitimate brothers and sisters. The husband did nothing to call for the payment by him of the costs of this contest. Decree modified in accordance with these views, and no costs allowed to either party on this appeal. All concur.  