28 N. Y. 667; although, in general, an ancillary administration must bear its own expenses. Jennison v. Hapgood, 10 Pick. 77. So, the revenue stamp on an administration bond and the appraisement fees are proper administration expenses, Edelen v. Edelen, 11 Md. 415; and even the expense of correcting his own mistakes in a proceeding to set off the homestead. Bartlett v. Fitz, 59 N. H. 502. But the contest of a will is no part of the administrator's duty, and he will not be allowed attorney's fees for such contest, Matter of Parsons, 65 Cal. 240; Lester v. Matthews, 56 Ga. 655; or other expenses, although the contest was successful, Brown v. Eggleston, 53 Conn. 110. This is true, a fortiori, of the expenses of contesting a probate in another state. Matter of Black, 6 Dem. 331; Dalrymple v. Gamble, 68 Md. 156. In case of the bona fide contest of probate it has been the usual practice of the probate courts to allow the costs and expenses of all parties to be paid out of the estate, Day v. Day, 2 Gr. Ch. 549; Whitenack v. Stryker, 1 Id. 8; although the will may provide that any child contesting it shall pay all costs. Hoit v. Hoit, 13 Stew. (N. J.) 478, revd. 15 Id. 388. So, the costs of the unsuccessful proponent of a will may be paid out of the estate if he has offered it in good faith, Matter of Bull, 1 Connoly 395; or such allowance may be refused, Moyer v. Swygart, 125 Ill. 262; Shaw v. Moderwell, 104 Ill. 64; especially on setting aside a probate procured by the executor's fraud, Sill v. Sill, 39 Kan. 189; or where, as executor named in a forged will, he unsuccessfully resisted the probate of the true will. Sheetz's Appeal, 100 Pa. St. 197. But he is not entitled to such costs as a matter of right, and he may be subjected to the payment of adverse costs, Collyer v. Collyer, 4 Dem. 53; S. C. 17 Abb. N. C. 328; and an order of the

surrogate to that effect is discretionary, and not subject to review. Collyer v. Collyer, 110 N. Y. 481. In like manner the costs of the unsuccessful contestant will not be allowed where there was no reasonable ground for contest, Matter of Tacke, 1 Connoly 119; and he may be subject to adverse costs. Matter of Whelan, 6 Dem. 425; Matter of Lasak, 1 Connoly 486. So, in a contest over the granting of administration, the costs of the unsuccessful party will not be charged to the estate. Estate of Barton, 55 Cal. 87. And where an executrix is removed for misconduct, she may be charged personally with the costs of the proceeding. Matter of Stanton, 1 Connoly 108.

Where the administration expenses are expressly charged by the will on certain lands, they may be enforced directly against the property charged, Boynton v. Laddy, 50 Hun 339; but will not create a trust in the executor. Dill. Wisner, 88 N. Y. 153. But such expenses will not support a bill in equity against lands in the hands of a third party purchased by him after the decedent's death on the foreclosure of a mortgage alleged to have been given him by the decedent in fraud of creditors. Willel v. Malli, 65 Ia. 675. In general, all expenses of administration must be itemized if they are to be allowed. Richardson v. Kennedy, 74 Tex. 507. But it is in the discretion of the court, in default of items, to allow a gross sum for disbursements, Cox v. Baker, 113 Ind. 62; especially where, from the nature of the estate, it is apparent that large disbursements must have been made, Bohde t. Bruner, 2 Redf. 333. Other legal costs and expenses of administration incurred in accounting or litigation, or in the management of the estate, will be considered infra, in loco.

Counsel fees. In general, an executor or administrator cannot act as

counsel for the estate so as to entitle him to fees as such. Pollard v. Barkley, 117 Ind. 40; Clark v. Knox, 70 Ala. 607; Teague v. Corbett, 57 Ala. 529; Logan . Bremen, 86 Tenn. 635. But this is questioned in Blake v. Pegram, 109 Mass. 541; and counsel fees may undoubtedly be paid to one who has renounced as executor and never qualified. Campbell v. Mackie, 1 Dem.

185.

An executor or administrator may, however, employ an attorney or counsel under proper circumstances, Matter of Moore, 72 Cal. 335; even without an order of the court, Reynolds v. Canal Co., 30 Ark. 520; and although there is no litigation pending. Smyley Reese, 53 Ala. 89. He may even render his successor liable for fees incurred by him for services rendered to the estate. Estate of Marvin, Myrick's Prob. 163. And several co-executors may employ different counsel, where there is a bona fide difference between them as to the proper course to pursue. Fox's Appeal, 125 Pa. St. 518; Matter of Delaplaine, 1 Connoly 1. But no allowance will be made for counsel unnecessarily employed, Crowder v. Shackelford, 35 Miss. 321; Willson v. Willson, 2 Dem. 462; Johnson v. Henagan, 11 S. C. 93; Grothaus r. Witte, 72 Tex. 124; Hurlburt. Hutton, 17 Stew. (N. J.) 302; or employed to perform duties incumbent on the executor himself, Kingsland. Scudder, 9 Stew. (N. J.) 284; Raymond e. Dayton, 4 Dem. 333; Matter of Collyer, 1 Connoly 546; such as preparation of the inventory, Pullman

. Willets, 4 Dem. 536; and the services must have been rendered after the administrator's appointment, Matter of Collyer, 1 Connoly 546; and must appear to have been beneficial to the estate, Estate of McClure, 15 Phila. 578; Brandon v. Hoggatt, 32 Miss. 335 ; although they may have been rendered under a contract with the administrator

which was invalid by reason of his mental incapacity. Young v. Kennedy. 95 N. C. 265. It is not necessary that the executor should have followed the counsel given. Eppinger v. Canepa, 20 Fla. 262. But he must show ground for not having done so. Munden v. Bailey, 70 Ala. 63.

To entitle the executor to credit for the fees paid by him, they must be shown to be reasonable. St. John v. McKee, 2 Dem. 236; Cannon v. Apperson, 14 Lea 552; Matter of Bradley, 1 Connoly 106; Hurlburt v. Hutton, 17 Stew. (N. J.) 302; Estate of Bradley, 11 Phila. 87; Grothaus v. Witte, 72 Tex. 124. If they appear on their face to be reasonable, the burden of proving the contrary is on the contestant. Fowler v. Lockwood, 3 Redf. 465. They may, however, be contingent on the result. Noel v. Harvey, 29 Miss. 72. But if not proper, they cannot be allowed by the court by consent of the parties. Kingsland v. Scudder, 9 Stew. (N. J.) 284. If the court has passed upon them on the intermediate accounting, its judgment will be conclusiveon the final accounting. Dey v. Codman, 12 Stew. (N. J.) 258. But no allowance can be made for such fees until they have been actually paid, Shields v. Sullivan, 3 Dem. 296, S. C. as Estate of Heather, 15 Abb. N. C. 194; Ditmar v. Boyle, 53 Ala. 169; and payment by the note of an insolvent executor is not sufficient. Matter of Bailey, 47 Hun 477.

Executors are personally liable to counsel employed by them for the estate, Long v. Rodman, 58 Ind. 58; De Lamater v. McCaskie, 4 Dem. 549; and the Probate Court will not adjust the fees, Osborne v. McAlpine, 4 Redf. 1; or compel the executor to pay them. Budlong v. Clemens, 3 Dem. 145. The attorney has a lien, however, on the moneys received by him, although they belong to the estate.

Matter of Knapp, 85 N. Y. 284. But see De Lamater v. McCaskie, 4 Dem. 549, contra. And in Arkansas, his lien depends on the fact of his employment having been authorized by the Probate Court. Turner v. Tapscott, 30 Ark. 312. His claim against the estate is not one for the payment of which the decedent's lands will be charged in default of sufficient personalty. Potterfield v. Taliaferro, 9 Lea 242.

Personal services and expenses. The allowance to executors and administrators for their personal services will be considered ubi infra, p. *1772, n. Such services are, in general, covered by the allowances or commissions provided for by the statute. A trifling allowance, however, even for future services has been held to be an insufficient reason for reopening his account. Canfield v. Bostwick, 21 Conn. 550. He cannot charge for the use of his own horse in the business of the estate. Matter of Ingersoll, 6 Dem. 184; Pullman v. Willets, Id. 536; but see, contra, Sherrell v. Shepard, 19 Fla. 300; nor for food supplied to himself and his horse while engaged in that business, Pullman v. Willets, 6 Dem. 536; and moneys expended for medical services to the family of the deceased will not be allowed. Johnston v. Morrow, 1 Stew. (N. J.) 327. He is, however, entitled to recover his advances made in the administration of the estate, Dunn v. Campbell, 2 Dick. (N. J.) 4; Smith v. Davis, 51 Ark. 415; with interest, Mann v. Lawrence, 3 Bradf. 424; especially when the advances were in payment of interest-bearing debts of the estate. Stillwell v. Melrose, 15 Hun 378; and to prevent costs of suit. Jennison v. Hapgood, 10 Pick. 77; or to improve the property and protect it from attachment. Nathan v. Lehman, 39 Ark. 256. But not for advances made in paying off a lien which

amounted to a full value of the property covered by it. Richardson v. Kennedy, 74 Tex. 507.

His traveling expenses in the business of the estate may be allowed, in New York, Hasler v. Hasler, 1 Bradf. 248; and in New Jersey, if taken into consideration in fixing the commissions, Dey v. Codman, 12 Stew. (N. J.) 258; but not otherwise. King v. Berry, 2 Gr. Ch. 261. But the fact that his residence is at a distance from the county seat is no ground for an extraordinary allowance, Watkins v. Romine, 106 Ind. 378; and if he removes into another state, his traveling expenses in returning will not be allowed, Matter of Ingersoll, 6 Dem. 184.

The necessary expenses of an executor in preserving property pending contest of probate may be allowed, although the probate is afterward set aside. Gilbert v. Bartlett, 9 Bush 49. So, an administrator will be allowed premiums paid for the insurance of personal property, Cornwell v. Deck, 2 Redf. 87; or auctioneer's fees reasonably incurred for its sale, Pinckard v. Pinckard, 24 Ala. 250; Sherrell v. Shepard, 19 Fla. 300; or reasonable repairs to the furniture, Pinckard v. Pinckard, ubi supra; or, formerly, for medical services to slaves of the testator, Bornford v. Grimes, 17 Ark. 567; or the keep of animals that cannot be sold, Branham v. Commonwealth, 7 J. J. Marsh. 190; but not the keep of an old and useless favorite horse (although at the verbal request of the testator). Matter of Teyn, 2 Redf. 306.

Expense of agents, bookkeepers, &c. Where an agent is necessarily employed by an executor in the management of a large estate, his charges may be properly allowed, McWhorter v. Benson, Hopk. Ch. 28; Rohde v. Bruner, 2 Dem. 333; Hawley . Singer, 3 Id. 589; Glover v. Holley, 2 Bradf. 291; Matter of White, 6 Dem. 375; e. g., in

the sale of a stock of goods at retail to avoid sacrifice, Cornwell v. Deck, 2 Redf. 87; or in the sale of land held by the executor in trust, Dey v. Codman, 12 Stew. (N. J.) 258; especially where they have been taken into account in fixing the executor's commissions. Dey. Codman, ubi supra. And where the vouchers and statements show reasonable cause, the burden is on the contestant as to the question of the necessity. Matter of White, ubi supra. So, office rent may be allowed in the management of a large estate, Hawley . Singer, 3 Dem. 589; Glover

. Holley, 2 Bradf. 291; or rent of lodging for the janitor of an apartment house. Matter of Meikle, 2 Connoly 97.

But allowance will not be made for the services of an agent to perform the ordinary duties of the executor, e. g., to make collections, Gwynn v. Howard, 4 Gill & J. 453; or prepare the executor's accounts, Underhill v. Newlerger, 4 Redf. 499; Miles v. Peabody, 64 Ga. 729; or a bookkeeper to keep the books and accounts of the estate, Matter of Moore, 72 Cal. 335; Fowler v. Lockwood, 3 Redf. 465; or for clerical services in copying the inventory, Hasler 7. Hasler, 1 Bradf. 248; especially if the occasion of his employment is the executor's removal from the state, Matter of Ingersoll, 6 Dem. 184; or his want of leisure to prepare his inventory and account, Matter of Quin, 1 Connoly 381; or his own mismanagement of the estate. Hall v. Pegram, 85 Ala. 522. So, the services of a broker will not be allowed where the executor has denied that he employed him, although judgment has been rendered in favor of the broker against the executor personally. Tucker . Tucker, 2 Stew. (N. J.) 286.

Taxes on real property. In general, where the decedent's land descends to his heirs, the executor or administrator will not be allowed for taxes paid by him. Cornwell v. Deck, 2 Redf. 87;

Moody v. Hempfield, 71 Ala. 169; Young . Kennedy, 95 N. C. 265; Walker's Appeal, 116 Pa. St. 419; Polhemus v. Middleton, 10 Stew. (N. J.) 240. So, in Louisiana, where the payment is not necessary for the culti vation of the crop. Succession of Osborn, 40 La. An. 615. So, where the taxes were payable by the life tenant under the will. Deraimes v. Deraimes, 72 N. Y. 154.

But where the executors hold the land as devisees in trust, taxes paid by them will be allowed in their accounts, Dey v. Codman, 12 Stew. (N. J.) 258; and even assessments paid in good faith, although afterward set aside as unconstitutional. Id. So, in Virginia, taxes are payable by the administrator until the land is transferred to the heirs, or until a decree in partition after the administration is completed. Dillard v. Dillard, 77 Va. 820. And in some other states the taxes due at the death of the decedent must be paid by the administrator. Wilson v. Shearer, 9 Met. 504; Bowers v. Williams, 34 Miss. 324. So, taxes on land which is required for the payment of debts. Fessenden's Appeal, 77 Me. 98. And he may be allowed for taxes paid on lands in another state, or for taxes paid in good faith on lands to which the decedent's title was defective. Jennison v. Hapgood, 10 Pick. 77. And see, as to taxes, repairs, and insurance on a house occupied as a dwelling by the widow and infant children of the testator, Matter of Rolph, 2 Connoly 191. So, he may redeem real property from tax sale, if it is needed for the debts of the estate, Bowers v. Williams, 34 Miss. 324; and was the only property of the estate, Jones v. Le Baron, 3 Dem. 37; and even have allowance for the penalties paid by him, although his inability to pay the taxes was due to his premature payment of debts. Schoeneich v. Reed, 8 Mo. Ap. 356.