In re Darling's Estate

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, the fund to be benefited by the suit •ought to pay the costs in case of defeat. Insurance Co. v. Stevens, 35 How. Pr. 107. This seems to be a proper case for the application of . such a principle, The plaintiff brought a suit for the benefit of the estate of which he was executor, in whicii 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 accounts incurred in a suit brought for the benefit of the estate. Order reversed, and case sent back to the surrogate for further proceedings. All concur.