
    In the Matter of the Estate of Clarissa Darling, Deceased.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 11, 1891.)
    Executors—Liability for costs.
    M. was abroad at time of testatrix death in 1871. He was named as executor, but permitted persons interested in the estate to take the property and divide it and pay the debts, taking their receipt on his return. He never made an accounting, but in 1886 brought a suit as executor on a note which was held barred by the statute of limitations, and judgment for costs entered against him as executor. Held, that such costs should be paid by the estate, but having never accounted, and it appearing that deceased left ample means, the executor must be presumed to have funds to meet the costs.
    Appeal from an order of Suffolk county surrogate’s court, in proceedings to compel an executor to pay a judgment for costs in an action brought by him as executor.
    
      Thomas J. Ritch, Jr., for app’lts; George F. Stackpole, for resp’t.
   Pratt, J.

—It has been laid down as a principle in some cases that where a suit is brought for the benefit of a fund that the fund to be benefited by the suit ought to pay the costs in case of defeat. Columbian Ins. Co. v. Stevens, 35 How. Pr., 107.

This seems to be a proper case for the application of spch a principle.

The plaintiff brought a suit for the benefit of the estate of which he was executor, in which he was defeated and costs awarded against him, and it is only just that the estate should be made to pay such costs.

This imposes no real hardship upon the plaintiff in that suit, as he could have secured indemnity before commencing his suit from the parties to be benefited by a judgment in his favor.

The circumstances under which the estate was settled and distributed does not constitute a valid defense to this claim, as there has never been any accounting by the plaintiff as executor.

He seems to have permitted persons interested in the estate to take the property and divide it and pay the debts. Such an arrangement was valid as between them, but it did not bind creditors nor relieve the executor from doing his duty under the law. Having never accounted, and it appearing that the deceased left ample means, the executor must be presumed to have funds to meet costs incurred in a suit brought for the benefit of the estate.

Order reversed and case sent back to surrogate for further proceedings.

Barnard, P. J., and Dykman, J., concur.  