Seabuey, S.
— This is an application for the distribution of surplus money, proceeds of sale arising from the foreclosure of ■certain mortgages upon real estate, which were of John W. Summers, deceased.
John W. Summers died October 10, 1893, leaving a will in •and by which he devised all his estate to his wife, Mary Summers.
The will was admitted to probate January 10, 1900, and letters of administration, c. i. a., were issued to Edward T. liegeman, March 14th, 1900.
Appraisers were duly appointed, who returned an inventory that they had found no personal property.
On the 8th of June, 1900, arrangements were made by which •a mortgage was given by members of family, by which certain debts were paid, including that of the administrator end for services of counsel, up to the 8th of June, 1900, and Mr. Hege-man received twenty-five dollars for his services. No other money came into the hands of the administrator.
Subsequently all the real property of which testator died seized was sold as the result of two actions of foreclosure, and each of which resulted in a surplus now in the hands of tbe treasurer of Nassau county, amounting to- $2,015.
Subsequent to the settlement above referred to Charles Gr. Summers presented a claim against the estate to the administrator, consisting of an old promissory note under seal, which was disputed by the administrator and referred under the statute to a referee, who reported in favor of the claim and disbursements without costs, and judgment was thereupon entered [600]*600on September 6, 1900, for $1,254, with, referee’s fees and disbursements amounting to $95.87, making in all $1/349.87.
Mary Summers, the sole legatee and devisee under .the will, 'has since died and letters of administration upon her estate issued to Charles G. and Edward G. Summers.
Thereafter the present proceedings were instituted and the following persons presented claims in this proceeding, upon this surplus money arising from the aforementioned foreclosures.
Charles G. Summers, amount of judgment above referred to $1,254, with $95.87, amounting to> $1,349.87, with interest from September 6, 1900. An assignment made by Charles G. Summers to Levy B. Young, dated June 1, 1900, was also received in evidence, assigning all costs and one-third of any judgment that might be received on claim. The amount claimed by each as appears by the evidence: Charles G. Summers, two-thirds of amount of judgment, exclusive of costs, $836, with interest from September 6, 1900. Levy B. Young, as assignee, one-third of amount of judgment, exclusive of costs, $418, with interest from September 6, 1900. Also $95.87, amount of referee’s fees and disbursements, with interest from September 6, 1900.
The claim upon which the above judgment was obtained is the only debt claimed to be unpaid against the estate of John Summers, and the only debt claimed against his estate other' than those that were paid by the administrator with money received from the Summers family before mentioned.
The administrator, however, presents a claim- under subdivision 6, section 2793 of the Code of Civil Procedure, for legal expenses incurred, in the sum of $250 for professional services of his counsel. These services, consisted, as appears from the memoranda submitted, of services rendered by his counsel in settlement of claims, etc., referred to in agreement of Summers family, and in the trial and defense of the Charles G. Summers claim, the Summers claim occupying about six [601]*601days, and including four dollars and twenty cents disbursements, and upon tbe other business about three and one-half days and disbursements, amounting to eighteen dollars and forty-five cents, including thirteen dollars and twenty-five cents for notice to creditors.
Services of George B. Stoddard, guardian ad litem> upon probate of will, amount of claim allowed, to be submitted to the discretion of the surrogate.
, The amount of the judgment, exclusive of the disbursements,has not been disputed.
Therefore, the only matters in dispute are the referee’s fees and disbursements included in the judgment, and the claim of the administrator to the legal and other expenses of the administrator.
Eirst in regard to the claim for referee’s fees and disbursements.
Section 2756 of the Code provides that “ "Where a judgment or decree has been rendered against an executor or -administrator, for a debt due from the decedent, the debt is, nevertheless, deemed a debt of the decedent, to the same extent, and to be established in the same manner, and except as prescribed in the next section, subject to the same defenses, as if an action had not been brought thereon.”
Section 2757' qualifies the preceding section as follows: “ 1. The-debt, for which the judgment was rendered, cannot be-allowed, as against the property in question, at any greater sum than the amount recovered, exclusive of costs.”
Counsel for the judgment-creditor claims that this provision relates only to costs as distinguished from disbursements, and that as the referee did not allow costs upon the judgment it does not affect the judgment that includes only the referee’s fees and disbursements, and cites a number of authorities showing the discrimination that courts have made between costs and disbursements. But all these decisions are such as would only [602]*602affect assets in the bands of an executor or administrator. They practically hold that in a judgment rendered against an executor or administrator where the referee certifies that the payment of the claim was unreasonably resisted, or neglected, etc., the court may award costs against the executor, etc., to be paid out of the executor’s individual property, or out of the property of the decedent, and that in the absence of such certificate the creditor was entitled to his disbursements, but not his costs. So that under certain circumstances the costs would be as binding against’ assets of a 'decedent in the hands of the executor or administrator as the disbursements; but I do not think that these provisions apply to these proceedings.
Under the common law real estate upon the death of the owner vested immediately in his heirs and devisees, and they took it free from his general debts. And it only can be taken for the payment of debts now by virtue of statutory provisions.
Section 2757 expressly states that the debt for which said judgment was rendered cannot be allowed against the “property in question at any greater sum than the amount received exclusive of costs, and I think this provision intended that the heir shall not be burdened with the expenses' and disbursements of an action or proceeding to which he may never have been a party, and the result of which is not in any manner conclusive upon him. While section 2756 provides that while such a judgment, or decree rendered upon the merits is presumptive evidence of the debt, upon the hearing section 2756 provides that, where such a judgment has been rendered against an executor, etc., for a debt due from the decedent, it is nevertheless, deemed a debt of the decedent to the same extent and to be established in the same manner as if >an action had been brought thereon.
I am, therefore, of opinion that the claim of the judgment-creditor for referee’s fees and disbursements should be disallowed.
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Seabuey, S.
— This is an application for the distribution of surplus money, proceeds of sale arising from the foreclosure of ■certain mortgages upon real estate, which were of John W. Summers, deceased.
John W. Summers died October 10, 1893, leaving a will in •and by which he devised all his estate to his wife, Mary Summers.
The will was admitted to probate January 10, 1900, and letters of administration, c. i. a., were issued to Edward T. liegeman, March 14th, 1900.
Appraisers were duly appointed, who returned an inventory that they had found no personal property.
On the 8th of June, 1900, arrangements were made by which •a mortgage was given by members of family, by which certain debts were paid, including that of the administrator end for services of counsel, up to the 8th of June, 1900, and Mr. Hege-man received twenty-five dollars for his services. No other money came into the hands of the administrator.
Subsequently all the real property of which testator died seized was sold as the result of two actions of foreclosure, and each of which resulted in a surplus now in the hands of tbe treasurer of Nassau county, amounting to- $2,015.
Subsequent to the settlement above referred to Charles Gr. Summers presented a claim against the estate to the administrator, consisting of an old promissory note under seal, which was disputed by the administrator and referred under the statute to a referee, who reported in favor of the claim and disbursements without costs, and judgment was thereupon entered [600]*600on September 6, 1900, for $1,254, with, referee’s fees and disbursements amounting to $95.87, making in all $1/349.87.
Mary Summers, the sole legatee and devisee under .the will, 'has since died and letters of administration upon her estate issued to Charles G. and Edward G. Summers.
Thereafter the present proceedings were instituted and the following persons presented claims in this proceeding, upon this surplus money arising from the aforementioned foreclosures.
Charles G. Summers, amount of judgment above referred to $1,254, with $95.87, amounting to> $1,349.87, with interest from September 6, 1900. An assignment made by Charles G. Summers to Levy B. Young, dated June 1, 1900, was also received in evidence, assigning all costs and one-third of any judgment that might be received on claim. The amount claimed by each as appears by the evidence: Charles G. Summers, two-thirds of amount of judgment, exclusive of costs, $836, with interest from September 6, 1900. Levy B. Young, as assignee, one-third of amount of judgment, exclusive of costs, $418, with interest from September 6, 1900. Also $95.87, amount of referee’s fees and disbursements, with interest from September 6, 1900.
The claim upon which the above judgment was obtained is the only debt claimed to be unpaid against the estate of John Summers, and the only debt claimed against his estate other' than those that were paid by the administrator with money received from the Summers family before mentioned.
The administrator, however, presents a claim- under subdivision 6, section 2793 of the Code of Civil Procedure, for legal expenses incurred, in the sum of $250 for professional services of his counsel. These services, consisted, as appears from the memoranda submitted, of services rendered by his counsel in settlement of claims, etc., referred to in agreement of Summers family, and in the trial and defense of the Charles G. Summers claim, the Summers claim occupying about six [601]*601days, and including four dollars and twenty cents disbursements, and upon tbe other business about three and one-half days and disbursements, amounting to eighteen dollars and forty-five cents, including thirteen dollars and twenty-five cents for notice to creditors.
Services of George B. Stoddard, guardian ad litem> upon probate of will, amount of claim allowed, to be submitted to the discretion of the surrogate.
, The amount of the judgment, exclusive of the disbursements,has not been disputed.
Therefore, the only matters in dispute are the referee’s fees and disbursements included in the judgment, and the claim of the administrator to the legal and other expenses of the administrator.
Eirst in regard to the claim for referee’s fees and disbursements.
Section 2756 of the Code provides that “ "Where a judgment or decree has been rendered against an executor or -administrator, for a debt due from the decedent, the debt is, nevertheless, deemed a debt of the decedent, to the same extent, and to be established in the same manner, and except as prescribed in the next section, subject to the same defenses, as if an action had not been brought thereon.”
Section 2757' qualifies the preceding section as follows: “ 1. The-debt, for which the judgment was rendered, cannot be-allowed, as against the property in question, at any greater sum than the amount recovered, exclusive of costs.”
Counsel for the judgment-creditor claims that this provision relates only to costs as distinguished from disbursements, and that as the referee did not allow costs upon the judgment it does not affect the judgment that includes only the referee’s fees and disbursements, and cites a number of authorities showing the discrimination that courts have made between costs and disbursements. But all these decisions are such as would only [602]*602affect assets in the bands of an executor or administrator. They practically hold that in a judgment rendered against an executor or administrator where the referee certifies that the payment of the claim was unreasonably resisted, or neglected, etc., the court may award costs against the executor, etc., to be paid out of the executor’s individual property, or out of the property of the decedent, and that in the absence of such certificate the creditor was entitled to his disbursements, but not his costs. So that under certain circumstances the costs would be as binding against’ assets of a 'decedent in the hands of the executor or administrator as the disbursements; but I do not think that these provisions apply to these proceedings.
Under the common law real estate upon the death of the owner vested immediately in his heirs and devisees, and they took it free from his general debts. And it only can be taken for the payment of debts now by virtue of statutory provisions.
Section 2757 expressly states that the debt for which said judgment was rendered cannot be allowed against the “property in question at any greater sum than the amount received exclusive of costs, and I think this provision intended that the heir shall not be burdened with the expenses' and disbursements of an action or proceeding to which he may never have been a party, and the result of which is not in any manner conclusive upon him. While section 2756 provides that while such a judgment, or decree rendered upon the merits is presumptive evidence of the debt, upon the hearing section 2756 provides that, where such a judgment has been rendered against an executor, etc., for a debt due from the decedent, it is nevertheless, deemed a debt of the decedent to the same extent and to be established in the same manner as if >an action had been brought thereon.
I am, therefore, of opinion that the claim of the judgment-creditor for referee’s fees and disbursements should be disallowed.
As regards the claim of the administrator for expenses in[603]*603curred as administrator. The greater part of the expenses appears to have been incurred in contesting the action above referred, and also for some services rendered the administrator in the payment and settling of claims with funds raised by the heirs-at-law, or devisees to pay claims. It also includes the sum of thirteen dollars and twenty-five cents for publication of notice to creditors to present claims to the administrator. Why this latter amount was not included in the money raised by the heirs, or devisees, I cannot understand, as the expense had been incurred, and the notice had been published for a number of weeks before such adjustment was made on June eighth, as appears by the testimony.
The claim of the administrator is made under subdivision b of section 2193, which provides “ That out of the remainder of the money must be paid the sum, if any, which has been found to be due the executor, etc., upon a judicial settlement of his account, after applying thereupon the proceeds of the personal property.” It may be said that there has befen no judicial settlement of the account of the administratox*, and consequently no amount is now due, but waiving this contention, I am of opinion that the provision is intended to apply only to such amount as may be found due to the administrator on account of debts and funeral expenses, as provided in section 2749, and this view is further strengthened by the concluding portion of subdivision 6. This opinion was held in Smith v. Meakin, 2 Dem. 129, and also in Cook v. Woodard, 5 id. 97.
I am aware that the learned suiTogate of Westchester county dissented from this view in Shute v. Shute, 5 Dem. 1, who states that “while it is true that under section 2749, a sale of real estate can only be applied for in order to pay the debts of the decedent and his funeral expenses, it does not follow that the proceeds of such sale are to be used only for such purposes, or else how could any part of them be used for the payment to the widow of a sum in gross, or the surplus be paid to the [604]*604heirs, etc.” — for tbe reason that the widow and heirs-at-law were entitled to such surplus under other provisions of law. The rule may in some cases ■ work hardship, but I do not think in this case that such hardship was unavoidable.
The administrator was a creditor .and took presumably upon himself the duties of administrator primarily to protect his own debt. This with all other debts that had come to his knowledge were paid by the compromise arrived at with the devisees on June eighth. And all other expenses that he incurred after that were incurred with the full knowledge that there was no personal estate, and that he would be without means to meet any expense he might incur. The debt for which judgment was obtained might have been disposed of in the present proceedings, especially ias the judgment obtained was not conclusive upon this fund, as I have before stated.
I am, therefore, of opinion that I have no power to allow the claim of the administrator,
A decree should be entered to pay the first expenses of these proceedings, and the judgment of Charles G. Summers, exclusive of costs, as follows: Two-thirds to Charles G. Summers and one-third to Levy B. Young. The balance to be held by county treasurer, subject to further order of the court.
Decreed accordingly.