In re the Judicial Settlement of the Accounts of Blair

Hatch, J.: It is elementary law that an administrator has no authority to allow or pay any claim unless it exists against the estate, and, except for a limited amount, he must produce a voucher for the payment or prove its loss before he is entitled to be allowed therefor. In addition, he is to be allowed proper expenses of his administration of the estate ; but beyond this he cannot create any charge against the estate or pay any but lawful obligations charged thereon. It is clear that the obligations incurred by the executor in defending the probate of the will, so far as attorneys’ fees are concerned, became a charge, not against the estate, but against the executor personally. Such charge never becomes an obligation of the estate until allowed to the executor in his account. It is evident, therefore, that the basis upon which an administrator is authorized to allow and pay obligations of the estate fails as applied to the present case, because this was never an obligation of the estate nor an expense incurred by him in its administration. The law makes specific provision for the allowance of such claim in the account of the executor, and there is no other provision of law which provides for its allowance or which makes it a charge against the estate. The method of the allowance to the executor which the law provides is exclusive, and unless he is credited with it in the settlement of his account there is no provision of law authorizing its payment out of the funds of the estate. ' . The learned surrogate held that the former decision by this court (Matter of Blair, 49 App. Div. 417) was “ res ad/judioala ” of the right of the executor to be paid this sum. The only question before the court upon that appeal was whether the giving of a note for the unpaid balance of the attorney’s fees in the matter of probating the will could be considered as a payment, and it was held that the Code provision governing the subject could only be satisfied by an. actual payment in money, and until that was done there was no basis for its allowance. It is stated in the opinion in that case that upon an accounting the executor or administrator could only be allowed for sums actually paid when the account was presented and before the [120] letters had been revoked. We do not, however, understand that it was the intention of the court to hold that the executor might not be allowed for a proper obligation incurred by him in the course of administration, but which was not in fact paid until after his letters were revoked. The court was not speaking of expenses and payments which were properly incurred prior to the revocation of the letters, but of expenses which might be incurred after the revocation. Otherwise, the right of the executor to be allowed for proper obligations which he has incurred would be made to depend solely upon whether he had paid them prior- to the revocation of his letters; In fact, the executor is to' be allowed for such items of expense as • are proper and which he has paid prior to filing his account (Douglas v. Yost, 64 Hun, 155; Gilman v. Gilman, 6 T. & C. 211; S. C. on appeal, 63 N. Y. 41), the purpose of the law being to allow the executor for all proper obligations which he has incurred in the management of the estate while he was authorized to act and which has been paid at the time when his account is presented to the surrogate for allowance. In the present case there does not seem to be any disputed fact respecting the proper character of the executors’ charge, although it may be otherwise found upon a hearing where it is involved. It was found by the first referee that the obligation was properly incurred. This was affirmed by the surrogate, but was stricken out by this court for the reasons we have stated. It was also found to be a proper charge by the last referee, and was disallowed by the surrogate solely upon a technical question of law. We are not aware of any provision of law which precludes the executor from applying to the surrogate to open his account and for leave to file a. supplemental account embracing this item. The obligation was incurred prior to the revocation of his letters testamentary, and the only reason why he has not been allowed therefor was that he had not paid it. He was, however, liable to the person in whose favor it existed, and such liability could be enforced by action, judgment and execution. Under such circumstances^ so long as the estate remains unsettled, we see no reason why he should not be permitted to have his account opened and leave given to file the supplemental account. It is made to appear in the statement of facts in the record that he made such application and it was denied. The rea [121] sons for the denial do not appear. Upon the merits, so far as we are presently advised, there is no reason why he should not have this relief. If there is any objection to the propriety of the allowance claimed, it may be contested in that proceeding, but up to this time it has not been suggested but that the executor has a meritorious claim, and several courts have so determined. We think the order appealed from should be affirmed, with ten dollars costs and disbursements, but without prejudice to the right of the executor to move for leave to open his account and file a supplemental account. Patterson and Laughlin, JJ., concurred; Ingraham, J., concurred in result. Order affirmed, with ten dollars costs and disbursements, without prejudice to the right of the executor to move for leave to open his account and file a supplemental account.