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assets may prove to be insufficient for the payment of its debts and liabilities, and the costs of winding up, the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable ; and as to the valuation of annuities, and future, and contingent liabilities respectively, as may be in force for the time being under the Law of Bankruptcy with respect to the estates of persons adjudged bankrupt, and all persons who in any such case would be entitled to prove for and receive dividends out of the estate of any such deceased person, or out of the assets of any such Company, may come in under the decree or order for the administration of such estate, or under the winding up of such Company, and make such claims against the same as they may respectively be entitled to by virtue of this Act ” (p).
(p) This section does not introduce tion, Ex parte The Crown, 28 C. D. into the administration of insolvent 643, 649, seems to treat the construction estates of deceased persons the provi- of this section on this point as an open sions of s. 32 of the Bankruptcy Act, question. See also the observation of 1869 (s. 40 of the Act of 1883), that all Jessel, M. R., in the Mersey Steel & debts, with certain exceptions, are to be Iron Co. v. Naylor, 9 Q. B. D. 648, 662. paid pari passu. It affects only the S. 125 of the Bankruptcy Act, 1883, rights of the class of secured creditors provides for the administration in as condicting with those of the class of bankruptcy of the insolvent estate of a unsecured creditors, and does not affect deceased debtor, upon the petition of a the rights inter se of the members of creditor whose debt would have been those classes : Re Maggi, 20 C. D. 545. sufficient to support a bankruptcy peti. This decision as to the rights of secured tion against such debtor had he been and unsecured creditors inter se, how- alive, and that notice to the legal repreerer, is not necessarily conclusive to sentative of a deceased person of the show that section 10 does not import presentation by a creditor of a petition into administration proceedingsin court under this section shall, in the event of so much of the Bankruptcy Act, 1883, an order for administration being made as relates to the crown's priority. thereon, be deemed equivalent to a Chitty, J., in Re Oriental Bank Corpora- notice of an act of bankruptcy.
+ Erpenses of probate and administra- of Scott, 9 Watts & S. 98 ; but not tion. As to the statutory preference of those of counsel employed by a devisee probate and administration expenses to to protect his own interest. Gorton v. debts, see p. *839, n., ubi supra. Such Perkins, 63 Md. 589. And the emexpenses are, in general, preferred to all ployment of detectives if necessary for others. Miles r. Peabody, 64 Ga. 729. the purpose of establishing the will. They include the expenses of the pro- Will of Lewis, 8 Stew. (N. J.) 99. So, bate proper and of any appeals taken, the costs of probate in another state Croswell on Exrs. $ 539 ; Woerner on which was necessary for the proper exAdmn. § 362; Hazard v. Engs, 14 R. I. ecution of a testamentary power of sale 5; the necessary attorney's fees, Estate of land in that state, Young 0. Brush,
28 N. Y. 667 ; although, in general, an surrogate to that effect is discretionary, ancillary administration must bear its and not subject to review. Collyer t. own expenses. Jennison v. Hapgood, Collyer, 110 N. Y. 481. In like manner 10 Pick. 77. So, the revenue stamp on the costs of the unsuccessful contestant an administration bond and the ap- will not be allowed where there was no praisement fees are proper administra. reasonable ground for contest, Matter tion expenses, Edelen v. Edelen, 11 Md. of Tacke, 1 Connoly 119; and he may 415 ; and even the expense of correct- be subject to adverse costs. Matter of ing his own mistakes in a proceeding to Whelan, 6 Dem. 425 ; Matter of Lasak, set off the homestead. Bartlett v. Fitz, 1 Connoly 486. So, in a contest over 59 N. H. 502. But the contest of a the granting of administration, the will is no part of the administrator's costs of the unsuccessful party will not duty, and he will not be allowed attor- be charged to the estate. Estate of ney's fees for such contest, Matter of Barton, 55 Cal. 87. And where an exeParsons, 65 Cal. 240 ; Lester v. Mat- cutrix is removed for misconduct, she thews, 56 Ga. 655 ; or other expenses, may be charged personally with the although the contest was successful, costs of the proceeding. Matter of Brown 0. Eggleston, 53 Conn. 110. Stanton, 1 Connoly 108. This is true, a fortiori, of the expenses
Where the administration expenses of contesting a probate in another state. are expressly charged by the will on Matter of Black, 6 Dem. 331 ; Dal- certain lands, they may be enforced rymple v. Gamble, 68 Md. 156. In directly against the property charged, case of the bona fide contest of probate Boynton v. Laddy, 50 Hun 339 ; but it has been the usual practice of the will not create a trust in the executor. probate courts to allow the costs and Dill 0. Wisner, 88 N. Y. 153. But expenses of all parties to be paid out of such expenses will not support a bill in the estate, Day v. Day, 2 Gr. Ch. 549; equity against lands in the hands of Whitenack v. Stryker, 1 Id. 8; al. a third party purchased by him after though the will may provide that any the decedent's death on the foreclosure child contesting it shall pay all costs. of a mortgage alleged to have been Hoit v. Hoit, 13 Stew. (N. J.) 478, given him by the decedent in fraud of revd. 15 Id. 388. So, the costs of the creditors. Willel o. Malli, 65 Ia. 675. unsuccessful proponent of a will may In general, all expenses of administrabe paid out of the estate if he has tion must be itemized if they are to be offered it in good faith, Matter of Bull, allowed. Richardson v. Kennedy, 74 1 Connoly 395 ; or such allowance may Tex, 507. But it is in the discretion of be refused, Moyer v. Swygart, 125 Ill. the court, in default of items, to allow 262; Shaw v. Moderwell, 104 Ill. 64; a gross sum for disbursements, Cox o. especially on setting aside a probate Baker, 113 Ind. 62; especially where, procured by the executor's fraud, Sill from the nature of the estate, it is v. Sill, 39 Kan. 189 ; or where, as exec- apparent that large disbursements must utor named in a forged will, he unsuc- have been made, Bohde r. Bruner, 2 cessfully resisted the probate of the true Redf. 333. Other legal costs and exwill. Sheetz's Appeal, 100 Pa. St. 197. penses of administration incurred in But he is not entitled to such costs as a accounting or litigation, or in the manmatter of right, and he may be sub- agement of the estate, will be consid. jected to the payment of adverse costs, ered infra, in loco. Collyer v. Collyer, 4 Dem. 53 ; S. C. 17 Counsel fees. In general, an execuAbb. N. C. 328; and an order of the tor or administrator cannot act
counsel for the estate so as to entitle him to fees as such. Pollard 0. Barkley, 117 Ind. 40; Clark 0. Knox, 70 Ala. 607 ; Teague 0. Corbett, 57 Ala. 529 ; Logan 0. 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 o. 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 0. 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 Dela. plaine, 1 Connoly 1. But no allowance will be made for counsel unnecessarily employed, Crowder v. Shackelford, 35 Miss. 321 ; Willson o. Willson, 2 Dem. 462 ; Johnson r. Henagan, 11 S. C. 93 ; Grothaus r. Witte, 72 Tex. 124 ; Hurl. burt e. Hutton, 17 Stew. (N. J.) 302 ; or employed to perform duties incum
bent on the executor himself, Kings· land r. Scudder, 9 Stew. (N. J.) 284 ;
Raymond o. Dayton, 4 Dem. 333; Matter of Collyer, 1 Connoly 546 ; such as preparation of the inventory, Pullman t. 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 conclusive on 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 serrices and erpense8. 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 0. 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 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 resi. dence 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 ad ministrator 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 0. 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 4. Bruner, 2 Dem. 333 ; Hawley 1. 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 aroid sacrifice, Cornwell 0. Deck, 2 Redf. 87; or in the sale of land held by the executor in trust, Dey t. Cod. man, 12 Stew. (N. J.) 258; especially where they have been taken into account in fixing the executor's commissions. Dey v. 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 1. Singer, 3 Dem. 589 ; Glover 7. 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. O., to make collections, Gwynn v. Howard, 4 Gill & J. 453; or prepa the executor's accounts, Underhill 0. 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. Lock. wood, 3 Redf. 465; or for clerical services in copying the inventory, Hasler 0. 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 0. 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 o. Tucker, 2 Stew. (N. J.) 286.
Tares 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 o. Deck, 2 Redf. 87 ;
Moody V. Hempfield, 71 Ala. 169 ; Young v. 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 cultivation 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 re. quired 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 0. 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.