
    Benjamin C. Miller, Resp’t, v. Fidelia R. Morton et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    1. Heirs, „etc.—Claims of ancestor.
    Where an administrator erects, with the consent of the next of kin, a monument at a cost exceeding the allowance which the surrogate would have made therefor, a creditor of the decedent, who failed to present his claim within the time limited by law after the publication for claims, cannot recover from such next of kin such excess as assets distributed to them.
    3. Same—Judgment.
    In such action, the liability of the widow and next of kin is such that the sum, which the creditor is entitled to recover against them, must be apportioned among them in proportion to the distributive share received by • each of them.
    Appeal from a judgment in favor of plaintiff.
    
      Louis H. Jack, for app’lts; IF. E Davis, for resp’t.
   Bradley, J.

John Morton died, intestate, in March, 1883, leaving, him surviving, the defendant Fidelia R. Morton, his widow, the defendant Jennie M. Gary, and Helen M. Vick, the intestate of the defendant administrator, his children and next of kin. Iu August, 1883, two judgments were entered against Morton, for $219.01 and $374.02 damages and costs, upon verdicts-rendered against him prior to his death in favor of one Northrup. Those judgments, through mesne transfers, were assigned to the plaintiff, who brought this action in May, 1894, against the defendants, as the surviving wife and next of kin of Morton, deceased, to recover the amount remaining due upon those judgments, pursuant to the statute- Code Civ. Proc. § 1837. Letters of administration on the estate of Morton, deceased, were duly issued to his widow in July, 1883; and the assets which came to her hands as such administratrix amounted to $3,540. In July, 1884, she, by notice then and thereafter duly published for six months, gave notice to creditors to exhibit their claims to her on or before January 5, 1885. No claim founded upon the judgments before mentioned was presented to her. In December, 1892, the plaintiff, by petition, instituted a proceeding in the surrogate’s court of Monroe county to require the administratrix to pay the judgments; and in February, 1894, it resulted in the determination that there remained unexpended in her hands the sum of $626.85, and after deducting her commissions, with the expense of her accounting and the sum allowed for costs of the petitioner, left $335.04 which the administratrix was by the decree directed to pay upon the plaintiff’s claim. The referee found that, out of the money that came to her hands, the administratrix paid for funeral expenses, including burial lot and monument, $1,934.35, the expense of the monument being $1,400 ; also, for improvements upon real estate which descended to the two daughters, subject to her right of dower, $315.37; that she advanced to the daughter Helen $475.77; that she paid the plaintiff $335.04, retained for commissions and expenses of administration $247.25, and paid out the balance towards the funeral expenses of the daughter Helen ; that it was understood between Helen and her mother and sister x that the amount so paid to her should be applied towards her distributive share in her father’s estate; and that the money was paid for such improvements and expense of the funeral, including burial lot and monument, at the request of the two daughters; that the latter expenses were excessive in amount, and that no more than $1,000 should be allowed for them. The referee, therefore, concluded that the sum lawfully paid out by the administratrix, including the commissions and expenses upon her accounting, and the payment made to plaintiff pursuant to the surrogate’s decree, was only $1,582.29, leaving for distribution between the widow and the two daughters $1,957.71. The amount remaining due to the plaintiff upon the judgments was $675.09, for one-third of which the referee directed a judgment against each of the-defendants.

The fact that there had been no judicial settlement of the accounts of the administratrix in the surrogate’s court furnished no objection to the determination of this action on the merits. It is within the equitable powers of this court to require the personal representatives of deceased persons to render an account, with a view to relief sought dependent upon such accounting. The jurisdiction of the surrogate in that respect is not conclusive, but concurrent with that of this court. Rogers v. King, 8 Paige, 210. In view of the limited amount of the estate of the decedent, the conclusión of the referee was justified that the amount paid for the monument was excessive, and that sum reasonably applicable to the funeral expenses, including the burial lot "and monument, did not exceed $1,000. Wood v. Vandenburgh, 6 Paige, 277; Patterson v. Patterson, 59 N. Y. 574; Owens v. Bloomer, 14 Hun, 296; Allen v. Allen, 3 Dem. (Sur.) 524.

The question arises whether, by reason of that excessive expenditure, any portion of the amount of it should, in behalf of the plaintiff, be treated as assets distributed or paid to the widow and next of kin. When six months after the completed publication of notice to creditors had expired, the administratrix had reason to suppose that no creditors existed whose claim had not been presented, and she was then at liberty to make distribution of the assets. Not having any “ knowledge or notice of the claim of the plaintiff or his assignor,” she, with the consent of the next of kin, put $1,400 into a monument. It must be assumed that in doing so they acted in good faith. Neither of them derived any pecuniary benefit from the expenditure, nor can the monument be deemed to have any commercial value. Under like circumstances, it was held in OConnor v. Gifford, 117 N. Y. 275; 27 St. Rep. 453, that the creditor who had failed to present his claim was estopped from charging the executor with liability to the extent of the moneys which he had expended for a purpose mentioned in the will, and invalid as against the creditors of the testator. So far as appears in the present case, the attention of the widow or next of kin was not called to the claim in question until several years had elapsed after the time for presentation of claims pursuant to the notice to creditors had expired. This would have been no objection if the assets had been actually distributed or paid to the widow and next of kin, or had been invested in property as such in their behalf. By reason of loches of the owner or owners of the claim, the administratrix was led to believe that none existed; and thereupon she, with the consent of the next of kin, who had the like understanding, expended the amount before mentioned for the monument. She was lawfully permitted to expend a reasonable sum for such purpose. The plaintiff is therefore estopped from effectually asserting that, because such expense was excessive, any of the money which was ■expended for the monument constituted assets distributed or paid to the widow or next of kin for the purposes of his remedy sought by this action.

There remains for consideration the sum of $475.77, paid to Helen on account of her distributive share of the assets; the sum •of $315.38, expended in improvements and repairs upon the real estate; and $251, ajrpropriated to pajr funeral expenses of Helen, who died in 1886. Those sums were paid out by the widow with the consent of the defendant Cary; and that for the improvement of the realty, by the consent of both her and Helen. Neither of the two sums last mentioned was appropriated to purposes within the purview of the authority of the administratrix, and therefore the widow and the defendant Cary, as one of the next of kin, may be treated as equally charged with having and disposing of those sums of the assets, and each equally with Helen chargeable for the amount so applied in making the improvements upon the real estate. As to creditors, Helen alone was responsible on account of the amount so received by her on her distributive share of the assets, including one-third of the amount so expended upon the real estate. It follows that, as relates to the distribution of the assets which remain the subject for consideration, the estate of Helen must be deemed chargeable with $580.90, the widow with $232.13, and the defendant Cary with $232.13. Their liability respectively, is such that the sum which the plaintiff is entitled to recover against them must be apportioned among the defendants in proportion to the distributive share received by each of them. Code Civ. Proc. § 1839. As the plaintiff has not appealed, the recovery against the personal representatives of Helen M. Vick cannot be increased on this review. On the basis before mentioned, the proportionate share of the liability of each of the two defendants, Morton and Cary, to the plaintiff on his claim as of the time of the referee’s report was made is $150.21. No other question requires consideration. i

The j udgment should be reversed, and a new trial granted; costs to abide the final award of costs, unless the plaintiff stipulates to reduce the recovery against each of the defendants Morton and Cary, exclusive of costs, to $150.21, and in that event the judgments, as against those two defendants, be so modified, and, as modified, affirmed, with costs of this appeal to any party, and thereupon the judgment against the other defendant also be affirmed.

All concur, except Ward, J., not voting.  