
    (86 Hun, 9.)
    In re SPOONER’S WILL.
    (Supreme Court, General Term, Fifth Department.
    April 12, 1895.)
    Executors and Administrators—Accountino—Allowance eor Counsel Fees.
    An administrator will not be allowed for counsel fees unless he has actually paid them.
    Appeal from surrogate’s court, Steuben county.
    Judicial settlement of the accounts of John C. Spooner, administrator with the will annexed of Dan E. Spooner, deceased. From a decree rejecting certain counsel fees and charges of J. Rosencrans as attorney for said Spooner, said Spooner appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, BRADLEY, and WARD, JJ.
    J. Rosencrans, for appellant.
    J. F. Parkhurst, for respondent.
   WARD, J.

Dan E. Spooner died about the 23d of July, 1871, leaving a last will and testament. John McDougall, of Hornellsville, was appointed executor of said will, and qualified as such, and discharged his duties until his death, which occurred the 12th of November, 1888. Jane McDougall and Shirley E. Brown were appointed his administrators. Spooner left, him surviving, his mother, a brother, who is the present administrator, and Cornelia Spooner, a widow, who is the respondent here. They were all legatees under the will. The executor paid the legacies to the mother and brother, and the interest on the legacy of the widow down to the time of his death. The widow, by the will, was given the interest on $6,000; the fund to go to appellant upon the death of the widow. The administrators of McDougall paid the interest to the widow until November 1, 1890, when the appellant was appointed administrator with the will annexed. He then resided at Auburn, in this state. He retained counsel there in the matter (Mr. Rosencrans). The administrators of McDougall and the appellant adjusted the matter of the legacy, and agreed that $6,000 belonged to the estate of Dan E. Spooner. The appellant claimed the custody of the fund, and that it should be paid over to him, and he pay the widow the interest. The widow refused, and the matter was submitted to the surrogate’s court of Steuben county, and that court held that the appellant was not entitled to the custody of the fund. From that decision the appellant appealed to the general term, where the surrogate was sustained. 21 N. Y. Supp. 479, mem. The appellant further appealed to the court of appeals, where the decision of surrogate and the general term was reversed, with costs in favor of the appellant (In re McDougall, 141 N. Y. 21, 35 N. E. 961); and the court of appeals directed the surrogate that, “if the administrator had made any disbursements or incurred any obligations for which the estate was properly chargeable, he should have the opportunity of proving the facts, and having a decree made for their payment out of the estate.” Eosencrans was the. attorney who conducted the appeals for John G. Spooner. After the entry of the court of appeals judgment, Mr. Eosencrans rendered a bill against the administrator, commencing with November 14,1890, and ending with February 20,1894, amounting to §1,023.35, $291.68 of which was for taxable costs and disbursements of the general term and court of appeals, $150 of which was denominated “counsel fee at general term and court of appeals.” There was charged in this account for 10 trips going from Auburn to Bath, and once to Hornellsville, for 22 days* service, at §15 per day, amounting to $330. Twenty dollars is charged for making brief on settlement. Thirty dollars is charged for “making brief on accounting.” ■ Fifty dollars is charged for “counsel.” Seventy-six dollars and sixty-seven cents is charged for expenses of this attorney in these various trips. There does not seem to have been any serious controversy until the question arose before the surrogate as to who was entitled to the possession of the fund of $6,000. That controversy, as before said, went through to the court of appeals, for which the said attorney collected the taxable costs, he being successful. What the §150 counsel fee or the $50 counsel fee was for does not distinctly appear, except, generally, that Mr. Eosencrans claimed them, and they were allowed to him. After the -decision of the court of appeals, evidence was taken before the surrogate as to these claims. The appellant and his attorney were •sworn as witnesses. I cannot find from a close examination of the papers that the administrator had paid any of these claims to his attorney. The surrogate, after a careful examination of the •claims, allowed $35 for going to Bath and Hornellsville on the first occasion, where the attorney had charged §60, and allowed $60 for the services of the attorney upon the accounting, and also allowed the $150 counsel fee, which should also cover certain items in the charge; allowed the $7$.67 expenses that the attorney claimed he had incurred. A former decree of the surrogate’s court had allowed Eosencrans §50, which covered some of the services charged in the bill; so that altogether the attorney had received, besides his expenses of $76.67 and besides the costs on the appeals, $291.68, making a total of §586.68 besides expenses. The surrogate deemed this a sufficient .compensation for all the services and expenses "of the attorney, and rejected the rest of the claim. The surrogate also allowed the traveling fees and expenses of the administrator, himself, of $59.63, in and about this business.

The expenditures to be allowed in such cases by the surrogate must be reasonable and necessary, of which the surrogate must necessarily be, to a great extent, the judge. He is familiar with the services rendered, their character, and the necessity for them. The rule is well settled that in no event can an allowance be made to a representative for an administrator’s expenses—e. g. counsel fees—until it is actually paid. Redf. Law & Prac. Sur. Cts. 444; In re Bailey’s Estate, 47 Hun, 477; Shields v. Sullivan, 3 Dem. Sur. 296. Only the allowance that the surrogate makes under sections 2561 and 2562 of the Code of Civil Procedure can be allowed the . administrator until he has actually paid the expenses for which he claims. It will be seen, therefore, that all of this account, except upon judicial settlement, must have been paid by the administrator before he is entitled to be reimbursed; but, waiving this question, we think, upon the proof before us, that the surrogate allowed all that was reasonable and just upon this bill.

The decree of the surrogate of Steuben county is affirmed, with costs to the respondent, to be taken out of the corpus of the fund owned by the administrator and appellant. All concur.  