Withers' Appeal

[584] The opinion of the court, was delivered by Burnside, J. The only question this case presents, is whether an' administrator shall be allowed his counsel fees and expenses for' carrying on' a vexatious and tedious litigation for his exclusive benefit, or a benefit to his wife, who was the sole heir, and no creditors interested ?. If authority was wanted, Gossner’s estate, 6 Whar. 401, settles this- question. It jvas there held that an administratrix was not entitled to charge counsel fees to the fund, where she had made an unjust and vexatious defence' to the next of kin. Nor do we think he can be allowed to charge the- estate-with counsel fees and other expenses where he vexatiously resists a just creditor, for his own benefit or that of his wife. Here all the resistance to the collection of this debt, after it was in the Supreme Court in 1844, 7 W. & S. 276, was not only vexatious but dishonest, and for the exclusive benefit of Withers and his wife. The auditors and orphans’ court were as liberal to the administrator as he deserved. The decree of the Orphans’ Court is affirmed.