In re Miller

4 Redf. 302

• Court: New York Surrogate's Court
• Decided: April 15, 1880
• Status: Published

Opinion

The Surrogate.—The objection to the payment of the funeral expenses must be overruled. They were paid long before the creditor’s claim arose, and there is no evidence to show that they were unreasonably large. It makes no difference that they were first paid by the son of the deceased;' the law implies a promise on the part of the administrator having assets in his hands to reimburse him. (Dayton on Surrogate, 285; McCue v. Garvey, 14 Hun, 562.)

The objection to the expenses incurred in the legal proceedings against the creditor must also be overruled. These proceedings were brought in good faith for the benefit of the estate, and' the fact that they resulted in the first instance in an order in favor of the administrator proves that they were not altogether groundless. That tho costs on appeal were awarded to the creditor is no evidence that the court considered that the proceedings were unjustifiable. (Hunt v. Connor, 17 Abb. Pr., 466.) Nor will such a conclusion follow from the fact that costs were awarded against the administrator in a case like this one, where he is the plaintiff or prosecuting party.' (Fox v. Fox, 22 How. Pr., 453 ; Howe v. Lloyd, 9 Abb. Pr., N. S., 257.) In this respect this' case differs from Matter of Nichols, recently decided by this court, where costs had been given by the court against the executor, in an action brought against him, which was considered evidence that the claim had been unreasonably litigated by the administrator. (2 R. S., 90, § 41.)

The administrator must therefore be allowed in his account for the proper expenses and disbursements incurred by him in carrying on the proceedings referred to. {Redf. Burr. Pr., 394.)

Ordered accordingly.