9 Barb. 388 | N.Y. Sup. Ct. | 1850
As the defendants did not give notice to the creditors of the testator, to exhibit their claims with the.vouchers thereof, as they were permitted to do by the 34th section of the act, (2 R. S. 88,) no laches. is' imputable to the plaintiffs for not presenting théir account at an earlier day. The case of Harvey v. Skillman, (22 Wend. 571,) which held that the omission of executors to publish such notice; subjected them to costs, has .been in that respect overruled in Bullock v. Bogardus, (1 Denio, 276,) and in Russell v. Lane, (1 Barb. S. C. Rep. 523.) There are but two grounds on which executors are chargeable with costs under I 41, 2 R. S. 90; (1.) when the claim has been presented, and payment has.been unreasonably resisted or neglected; (2.) when there has been a refusal to refer, under § 36, the claim being disputed. (1 Denio, 276,) . . .
I. Has payment of this claim been unreasonably -resisted or neglected? The result of the trial shows that the plaintiffs’ claim was just, and ought to have been paid. The funds in the hands' of the executors were ample to meet every debt against the estate. Although the amount of the report of the referee fell short of the claim set up in the complaint, it is not shown to have been reduced by any counter claim on the part of the estate." There is no such difference between the sum claimed and the sum "allowed, as to justify the imputation of extortionate motives on the part of thó plaintiffs. The objection of the defendants to the
This case is distinguishable from Carhart v. Blaisdell’s Executors, (18 Wend. 531.) There the plaintiff claimed between four and five hundred dollars; and the defendants did not offer to pay any thing; but the cause was referred under the 36th section 2 R. S. 88. The referee reported in favor of the plaintiff only one hundred and thirty dollars, which the defendants paid. The court remarked that they could not say that the payment was unreasonably neglected or resisted.
It was said by Savage, Ch. J. in Roberts v. Ditmas, (7 Wend. 528,) that if a creditor presents a claim known to be a fair one, and there is property enough to pay it, not liable to pay debts of a higher class, it is the duty of the executor or administrator to pay it; and a refusal to pay under such circumstances was in his judgment unreasonable. If the executor doubts the correctness of the account, the statute provides that not only the vouchers may be required, but also the affidavit of the claimant. If he should still remain unsatisfied, he may resist; and if upon the trial it shall appear that he had good reason for such resistance, he can not for that cause be subjected to costs. In the present case, the claim was substantiated by the plaintiff’s oath, and the defendants refused to pay, and denied the justice of the whole claim. They did not offer to refer. The plaintiffs’ claim is reduced by the referee, a small amount. This reduction was not occasioned by a failure of the plaintiffs to prove the whole services as charged, nor by the establishment of an offset; but arose from a difference of opinion between the referee and the
In the present case, but one account was presented by the plaintiff, and it was properly verified. In Russell v. Lane, (1 Barb. 519,) this court held that the creditor was not bound to exhibit the evidences of his claim, or make oath to the justice of it, unless required to do so by the personal representatives of the deceased. Although not required by the executors in this case, the usual evidence was furnished of the correctness of the account, and that it was still justly due, and no payments had been made. In Russell v. Lane, (supra,) the claim presented was for $1480, and no credit given, and the claim not verified. The plaintiff,'on an action brought, recovered only $300. Mr. Justice Hand ruled that this reduction of the demand was an answer to a motion for costs, founded on that branch of the statute which makes executors liable for costs for unreasonably resisting or neglecting the payment of a claim. He admitted, that under peculiar circumstances, costs might be awarded against executors or administrators, although the demand had been greatly reduced by the referee or jury. In that case the referee had allowed but one-fifth of the claim, and there was no circumstance taking the case out of the general rule. In the present case about four-fifths of the amount claimed was allowed. The deduction was not on account of the rejection of any item, but on account of a difference of opinion as to the value of service?, actually performed.
There can be no good reason why a creditor should be compelled to prosecute an executor or administrator at his own expense, when the estate is sufficient to pay all the. claims against it, and the costs. Whether executors are considered as the repre
II. There is some conflict in the affidavits, on the question, whether the defendants refused to refer the claim or not. The plaintiff swears that the claim was presented to the defendants, duly verified, and payment demanded, on the 14th of Hov. 1848. It was rejected by them, two of the executors indorsing their rejection on the claim, and signing it, and giving as a reason for rejecting it, that it was “ unjust and not due.” It is not denied that it was so presented, and absolutely rejected by all the defendants. The plaintiffs swear that many times previous to the presentation of the claim in Hov. 1848, they offered to refer the claim, but the defendants refused. It is not pretended that, at the time the account was presented, duly verified on the 14th Hov. 1848, the offer was repeated. The denial is, that the plaintiffs offered to refer the matters in controversy to a referee or referees to be appointed under the approval of the surrogate. The plaintiffs may have offered generally to refer the account, .but without mentioning with the approval of the surrogate. It is not objected by the defendants that they ever offered to refer the matter, or that they would have consented to a reference had one been proposed. After an unqualified rejection of a claim as
I think, therefore, on both grounds—the unreasonable resistance of the claim, and the refusal to refer—the defendants should be<charged with costs, to be paid out of the estate of the testator.
Tho 317th section of the code exempts executors and administrators from costs, when they are now exempted therefrom, by § 41, 2 R. S. 90, and thus leaves the former law in force.
The remaining branch of the motion asks for an extra allowance under § 308 of the code, It is claimed both on the ground
The cause was not in itself difficult, within the meaning of the code. But I am of opinion that an action of this kind, which is so defended as to consume sixteen days, is an extraordinary case, "justifying an extra allowance. The regular fee bill affords no adequate compensation for professional services in such a cause.
It was unreasonable for the defendants to sever in their defenses. The cause of action was joint, and the defenses were necessarily all alike. The effect of defending by separate attorneys was to increase the plaintiffs’ labor threefold, without any increase of compensation, unless the court can allow it under § 308. The defendants had a strict right to employ several attorneys, but the plaintiffs should not be prejudiced by the extra labor thus cast upon them. If the defendants insist on their extreme rights, they should not complain if they are required thus, in part, to indemnify the plaintiffs for extra labor.
The decision of the judge at special term was therefore right, and must be affirmed.