Young v. . Brush

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 671 There is no allegation that the payments disallowed by the referee were not made in good faith by the executor and trustee, and I am at a loss to perceive any substantial reason why they should not be allowed. It is to be borne in mind that the complaint in this action is in the nature of a proceeding in equity, to call upon the executor and trustee for an account and transfer, and to deliver over to the administratrix, with the will annexed, all the estate of the deceased. It is not a proceeding before the surrogate to call him to account as executor solely; and therefore it is that all the just and equitable payments made by the executor and trustee, in the management of the estate while under his control, are proper matters to be now disposed of and adjudicated. It is quite clear to my mind that the executor and trustee but performed a duty incumbent upon him, in seeking to establish the will in New Jersey. There was real estate which passed by the will, and which by its provisions was vested in the executor as a trustee. On the death of the cestui que vie it was to be sold by him, and the proceeds distributed according to the terms of the will. He could not properly protect the property, or make a good title to it on such sale, unless the will was duly proved and established in *Page 672 the state where the land was situated. It became a matter of necessity, therefore, that the will should be proved in New Jersey; and when the representatives of the executor and trustee were called upon in equity to account for the estate of the decedent received by their testator, all the payments made by him, and expenses legitimately incurred by him, in establishing his title to the estate, so confided to him, they were entitled to be credited with such payments. It is thought to be well settled that a trustee, while acting under a general trust, is entitled to be allowed for all disbursements for taxes, repairs, salaries, insurances, and for all other charges and expenses which he in good faith thinks proper to pay. (7 Ves. 480; 3 Russ. 448; 2 John. Ch. 14; Id. 619.) There can be no doubt that costs incurred by the trustee in protecting the estate confided to his care, and paid by him, should be reimbursed to him out of the estate. In the present case, I think the decrees of the courts in New Jersey directing the costs of the proceedings there to be paid by the trustee out of the estate of the decedent, afforded him warrant and protection for making such payment; and it was error in the learned referee not to have allowed such payment to his representatives. They ought not to be called upon, after this great lapse of time, to furnish any other evidence of the necessity of such payment. I think the items should have been allowed, and the referee having found that they were in fact paid at the dates, and for the purpose specified, the total amount thereof should be deducted from the amount of the judgment in this action. They are enumerated in the referee's report. A new trial should be ordered.