
    In the Matter of the Estate of Catherine Bailey, deceased.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February, 1888.)
    
    1. Costs—Power of surrogate to allow to counsel of executor, etc.—Code Civ. Pro., §§ 2561, 2562.
    Except as provided in Code of Civil Procedure, §§ 2561, 2562, a surrogate has no power to award costs to the counsel of an executor or administrator.
    3. Counsel fees—Power of surrogate to allow to counsel of executor, ETC.
    Executors may employ counsel to give them necessary legal assistance in the management of their trusts, and may compensate them according to the value of the service rendered. For such a payment a claim may be made for reimbursement out of the funds of the estate, but no allowance can be made by the surrogate for a claim presented by an executor until he has actually paid his counsel and applied for reimbursement.
    $. Same—When cannot be allowed to executor.
    Counsel fees cannot be allowed the executor for the defense of actions against him, which were provoked by his misconduct.
    
      E. F. Bullard, for W. S. Haight, app’lt; P. C. Ford, for Giles S. Brisbin, resp’t.
   Parker, J.

A surrogate has not the power to award costs to the counsel of an executor or administrator, except as provided in sections 2561 and 2562 of the Code of Civil Procedure.

It is not pretended that the credit allowed to the executor, Brisbin, of $350, paid to his attorneys, Waldron & Lawrence, was made pursuant to the authority conferred by those sections. Such a claim could not be upheld were it made. While the authority of the surrogate to award costs is thus limited by statute, executors or administrators are in no wise precluded from employing counsel to give them necessary legal assistance in the management of their trusts, or from compensating counsel according to the value of the services rendered.

For payment so made a claim may be made for reimbursment out of the funds of the estate, but the rule is well settled that in no event can an allowance be made by the surrogate, for a claim presented by an executor until he has actually paid his counsel and applied for re-imbursement. Shields v. Sullivan, 3 Dem., 296.

In this case Brisbin, the executor, was credited in his decree with $200, value of services of George B. Lawrence, an attorney; and with $150, for services of C. A. Waldron his. attorney, in another action, the undisputed evidence being that no money had been paid to them, not a dollar of the funds of the estate had been applied in making such payment. True he had given his notes for the amount, but the surrogate finds as a fact that he was insolvent, so that the giving of the notes was a mere matter of form, and the conclusion is almost irresistible that the attorneys having abandoned all hope of compensation accepted the notes so as to reduce the amount of the executor’s liability for moneys received, to the devisees under the will.

It seems to be clear that the claim of the executor did not come within the rule justifying the surrogate in giving the credit as provided in the decree.

Even though he had actually paid the .money to the attorneys so as to enable him to properly present a claim for reimbursement, its allowance by the surrogate in this case would be to say the least of doubtful propriety.

The services rendered by the attorneys were not for the protection or benefit of the estate, but were solely for the benefit of the executor in actions brought against him for misconduct in the office of executor, and while he was successful in the litigation, the evidence before the surrogate as to bis conduct of the trust fully warranted a refusal to burden the estate with the expense of the litigation.

Decree modified by striking out the credit of $350, paid to Lawrence and Waldron, and adjudging that the sum of $487.31, instead of $137.31, be paid over to W. S. Haight, the present executor, and as thus modified, decree to be affirmed.

Costs of this appeal to the appellant against Giles S. Brisbin, personally.

Landon, Ch. J., and Fish, J., concur.  