Fitzgerald, S.
The decedent died in 1893, leaving a paper purporting to be his will. This paper was offered for probate and ¡admitted after contest by relatives representing two-thirds of the estate, who successfully appealed to the General Term of the Supreme Court, where the decree of the surrogate was reversed. An appeal was taken to the Court of Appeals by the executor in his official capacity and 'also by him individually *239with other beneficiaries under the will. The decision of the General Term was sustained. Meanwhile, the executor named in the will, the present accountant, had procured letters, which were revoked in April, 1897, whereupon letters of administration were issued. The person named in the will as executor and who had, up to the decision of the Court of Appeals, administered the estate, rendered an account, to which objections were filed and a reference of the issues raised thereby ordered. In conducting the litigation over the probate of the will the person named as executor engaged counsel, and upon the argument of the appeal in the Court of Appeals engaged eminent additional counsel.
The present contest relates to the propriety of the payments then made by a person named as executor in a will who is unsuccessful in procuring its admission to probate, and who is himself largely interested in the result. The duty of executors thus situated has been the subject of consideration by the General Term of this department. In the Matter of Hutchison, 84 Hun, 563, as in the case at bar, .the executor was individually interested in the result. The court held that, nevertheless, the trustee was entitled to be reimbursed for his expenses for counsel in procuring an interpretation of the will. The questions litigated were unsettled and novel, and the judge, writing the opinion of the court, quoted in support of the decision the following language from the case of Austin v. Oakes, 117 N. Y. 588: “ Upon this question the trial court and the General Term have differed with so- much of sensible and pertinent reasoning as to make a final determination not altogether easy.” The General Term, in the case cited, refers to this uncertainty of the law in support of its conclusion. The point upon which the probate was opposed was lack of due execution. The will was sustained by the surrogate. While this decree was reversed at General Term, yet Judge Parker, in his opinion, referred to the question as one “ which appeared never *240to have been before presented or considered.” The referee allowed the executor what he considered the reasonable value of the services rendered by counsel up to' the decision of the appeal to the General Term, but disallowed the executor everything claimed for the services of counsel (including the additional counsel on the appeal to the Court of Appeals), for the reason that, in his opinion, “ the executor’s duty to the legatees mentioned in the will who would take nothing unless the will was sustained, terminated with the judgment of the General Term, and that, if such an appeal was taken, the costs and expenses thereof must be borne by him and the other parties interested in sustaining the will.” I differ from him in this conclusion. For the defective execution the testator was responsible; the court of first impression decided in favor of probate, and the appellate court expressly noted that the question is novel. In my opinion, it was the duty of the executor to have the matter properly presented to the court of last resort and that he should be recompensed for his disbursements in that behalf. And this, notwithstanding he was personally interested in the result. This last circumstance should, however, be taken into' consideration in arriving a.t the amount to be allowed. Of the $4,500 allowed for legal sendees rendered by Mr. O’Eeill, he has been paid in cash the sum of $2,150' only, leaving a balance of $2,350, included in a note of $4,850 given by the executor, and indorsed by his wife, to Mr. O’Neill. This note was not delivered until after the letters were revoked, and the contestants claim it should not be allowed, because it does not constitute an actual payment. I concur with the views of the referee in this respect. Unless the parties can agree upon a sum to be allowed for legal expenses on the appeal to the Court of Appeals I will remit the proceeding to the referee for his- judgment on this point. In all other respects the report of the referee is confirmed.
Decreed accordingly.