
    John Hone, Ex’r, etc., App’lt, v. John Watts De Peyster, individually, and as Ex’r, etc., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1887.)
    
    Executors and administrators—When liable for costs.
    Where an executor unsuccessfully prosecutes an action in his representative capacity for the maintainance or vindication of his own individual rights, he should be charged with the costs of the litigation. But where he would have individually profited by the litigation to the extent of only a portion (as one-half), of the proceeds, if it had been successful, he is justly chargeable, personally, with one-half of the costs of the action brought by him and in which lie was defeated..
    Appeal from an order directing the payment of the costs -of a litigation between these parties by the. plaintiff personally.
    dr. H. Crawford, for app’lt; C. H. Brewster, for resp’t.
   Daniels, J.

The plaintiff was beneficially interested to the extent of one-half the subject matter in controversy between himself and the defendant in the action, the costs of which he has been directed to pay. There were no debts remaining unpaid against him as executor, and the sole object of the action was the recovery of the demands or property out of which, in case of a successful result, he would, under the will, have received one-half the amount. For that reason, and also upon the charge that the action was brought by him in his character as executor, in bad faith, the application was made to charge him personally with the costs of the litigation in which he had proved unsuccessful. But he denied having brought the suit in bad faith, and stated on the other hand that it was brought in good faith under the advice of counsel, after a, full and detailed statement of the facts, and as there was no further evidence bearing upon the subject of his motive, his answer made in this manner completely repelled and removed the charge contained in the petition, which was made only on belief of the petitioner, and removed the case therefore from the operation and effect of section 3246 of the Code of Civil Procedure.

But as he was the person who was individually to profit by the litigation to the extent of one-half the proceeds, if it had been successful, he is justly chargéable personally with so much of the costs of the action brought by him, and in which he was defeated. The cases of Brockett v. Bush (18 Abb. Pr. Rep., 337); Holdrige v. Scott (1 Lansing, 303); Butler v. Boston, etc., R. R. Co. (24 Hun, 99); Bedell v. Barnes (29 Hun, 589), substantially sustain the principle that where an executor unsuccessully prosecutes an action in his representative capacity for the maintainance or vindication of his own individual rights, that he should be charged with the costs of the litigation. And under this principle the executor should pay one-half the costs of this unsuccessful action. As to the other half, he rightly prosecuted 'the suit in his representative capacity for another person as the beneficiary in the litigation. In that half he had no interest whatever. But if it had been recovered, it would have been solely and wholly the property of another person for whom it was his duty to act as executor. As to the costs represented by that part of the litigation, the executor did no more than his duty, and as he did not act in bad faith he is not liable to be charged with that part of the expense of the litigation. The order accordingly should be modified by requiring him to pay one-half of the costs of the litigation mentioned in the petition instead of all the costs, and as so modified it should be affirmed, without, costs of the appeal.

Van Brunt, P. J., and Brady, J., concur.  