
    James C. Bushby, Respondent, v. Lancelot M. Berkeley, Appellant.
    First Department,
    December 13, 1912.
    Accounting — executors and administrators — failure to pay legacy — right to share in fees paid attorney of legatee.
    Transactions between the plaintiff and defendant examined, and held, that an accounting was improperly ordered as to certain matters.
    An executor who refuses to pay a legacy due from the estate, thus putting the legatee to litigation to enforce Ms rights, is not entitled to share in the fees of the attorney who represents the legatee.
    An executor is not entitled to share in the fees paid by an estate to an attorney for professional services.
    Appeal by the defendant, Lancelot M. Berkeley, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of June, 1910, directing an accounting.
    
      L. M. Berkeley, for the appellant.
    
      Max D. Steuer, for the respondent.
   Dowling, J. :

Upon a prior appeal this court laid down' the procedure proper to be followed by the court at Special Term in determining the extent to which the accounting herein should go in order to fix the rights of these parties, viz., to ascertain the actions and proceedings in which the defendant was bound to account, and .then to order him to account for all moneys he had received therein (135 App. Div. 446). This has been done, and we think correctly, except in regard to the following matters: (1) Berkeley v. Marks. There is no proof whatever that this was a partnership matter, or was connected in any way with the joint business. The payment was made after dissolution, and the burden was on plaintiff to show that it was a matter in which he was entitled to share. This he has failed to do. (2) Anderson & Dowling v. N. Y. & Harlem Railroad Co. It appears from the testimony without contradiction that this fund, originally $500, was paid to the firm to be applied on account of the disbursements and expenses of the litigation against the railroad company, and that whatever may be the outcome of the pending appeal, the whole amount will be insufficient for those purposes, and that no balance will remain in the hands of defendant. (3) Mills v. Bushby et al. The defendant, as attorney in fact of Mary J. Mills, was compelled to bring suit against plaintiff, who was an executor of the estate of Sarah J. H. Choate, deceased, and his coexecutor Dusenberry, to enforce the payment of a legacy due under the will. By the interlocutory judgment herein plaintiff is declared entitled to a share in the fees collected by defendant for his services in this matter. Under no possible circumstances can an executor who refuses to pay a legacy due from the estate under his care, thus compelling litigation to enforce the rights of the legatee, lawfully or properly share in the fees of the attorney who has represented such legatee. The very statement of the claim made for a participation in these fees furnishes its own refutation. (4). In re James D. Choate. This claim resembles the one last referred to. Plaintiff seeks to share in fees paid by an estate whereof he was one of the executors to the defendant personally for professional services rendered it as an attorney. He ■ could not collect for such services if rendered directly by himself, and he certainly should not 'be allowed to profit therefrom indirectly. (Parker v. Day, 155 N. Y. 383.)

The judgment appealed from will, therefore, be modified by striking the four matters heretofore enumerated from those as to which the defendant is directed to account, and as thus modified it will be affirmed, without costs.,

Ingraham, P. J., -McLaughlin, Clarice and Scott, JJ., concurred.

Judgment modified as directed in. opinion, and as modified affirmed, without costs. Order to be settled on notice.  