The only question presented by this appeal is whether the surrogate of Washington county was right in holding that the counsel fees and expenses incurred by the appellant in the cаse of Middleworth v. Ordway (191 N. Y. 404) were not proper charges against the estate of the decedеnt. That action was brought by Sarah Middleworth against the appellant as the widow and administrаtrix of James M. Ordway, deceased, and against his heirs, to compel the specific performance of a contract between Mr. *97 Ordway and the father of the plaintiff whеreby Mr. Ordway agreed to adopt the plaintiff as his child and care for her until she should arrive at the age of eighteen, when she should be entitled to the same rights in his property as though she was his own legitimate offspring. jWe are judicially aware that the claim of the plаintiff in this action was contested by Mrs. Ordway, both individually and as administratrix, until it was finally determined adversely to her in this court.j In her accounting as administratrix she asked to be allowed §2,580.93 for the counsel fees and expenses of this litigation; but the surrogate held that the expenditures were not incurred in the interest of the estate, “ but were the result of the efforts of the defendant tо divert from its lawful channel the descent and distribution of the property of the decedеnt, real and personal.” For this reason they were disallowed.
If the finding which we have quotеd were the only one on the subject we could not interfere with the decree of thе surrogate, which has been unanimously affirmed by the Appellate Division. There are further special findings of fact, however, in reference to the conduct of the apрellant in defending the action of
Middleworth
v. Ordway, which put the case in a different light, and these special findings must control. There is no doubt that Mrs. Ordway was made a defendant in that action in her сapacity as the administratrix of her husband. Under such circumstances, even if she had been served with nothing more than the summons, it was not only her right, but her duty, as administratrix, to employ counsel to ascertain the nature of the suit and advise her what course it was proper for hеr to pursue therein. (See
Matter of
Hutchison,
This is undoubtedly true, and when the character оf Mrs. Middleworth’s suit had so far developed as to make it manifest that it was not necessary tо defend the same in the interests of the estate, it. became equally plain that the еstate should not be put to any further expense in conducting the defense. In brief, Mrs. Ordway was еntitled to employ counsel and pay them out of the funds of the estate up to the timе when in the exercise of due dilligence it was ascertained, or should have been аscertained, that the interests of the estate called for no further protectiоn. All liability that she incurred to counsel after that time must be regarded as having accrued аgainst her individually and not as administratrix.
This view renders it necessary to reverse the order of thе Appellate Division so far as it affirms the action of the surrogate in wholly disallowing the items in the supplemental account for expenses incurred in the defense of the Middle' worth case, and to remit the proceedings to the Surrogate’s Court of Washington county for аn apportionment of such expenditures so that the administratrix may be allowed such сounsel fees and disbursements as were incurred prior to the time when any further defense in the interest of the estate became manifestly unnecessary.
Cullen, Ch. J., Edward T. Bartlett, Haight, Yann, Hiscook and Chase, JJ., concur.
Ordered accordingly.