1 Pow. Surr. 495 | N.Y. Sur. Ct. | 1893
—The only matters contested and submitted for mv consideration and determination upon this accounting arise upon the item in schedule C of the accounts: “Paid Snider & Hopper, services, $700.” From the bill submitted upon the hearing, it appears that the same is for legal services, and that the same has not in fact been paid by the administrator. The rule is well settled that in no event can an allowance be made to a representative of an estate for an administration expense— as, for instance, counsel fees—until he has actually paid it. Redf. Sur. Pr. (4th Ed.) 444; In re Bailey, 47 Hun 477; Shields v. Sullivan, 3 Dem. Sur. 296. But I shall not dispose -of this matter upon that ground. The only oral testimony relating to the services charged for was given by Garret Z Snider, Esq., ■of the law firm who rendered the same. He testified on hia direct, examination to the services performed somewhat in detail, but aggregated his' estimate as to their value at $700. On Pis cross examination he detailed the services again, and gave the valuation of the same in detail, which aggregates $505. The first services that he rendered were at the instance of the widow of the deceased, in searching to ascertain whether or not the deceased left a will. He says that he spent some 4-]- days in that respect, and that his services were fairly worth $20 per day, making a total therefore of $90. Assuming that the services were thus rendered, and that the same were reasonably worth the sum named, yet the same cannot be allowed this ■administrator. The right of an executor or administrator to •employ counsel in the prosecution or defense of actions or legal: ■proceedings affecting the estate is, of course, allowable and proper (Redf. Sur. Pr. [4th Ed.] 447), and he is entitled to be veimbursed for all such necessary and reasonable expenditures;
The charge of $10 for services in behalf of Mrs. Van Eostrand for making the effort to obtain a bond for her as administratrix is disallowed. I do not think an expenditure for ■such services is chargeable to the estate, as she was not. appointed •administratrix. In re Oollyer (Surr.), 9 N. Y. Supp. 297. Eeither do I consider that such service called for legal skill, as the same appears to have been simply an inquiry of the surety company as to whether the company would become surety for her.
The attorney testifies to having performed Services in attending at the making of the inventory on two different days, and for which he charges $20 for each day; that he prepared and had
The surrogate is supposed to appoint qualified men to per- , form this service, and in this case both were especially competent, as they were lawyers. It may well be that a clerk can be employed at an auction sale by an administrator, and he be repaid out of the estate for such an expenditure, but it must appear that it is essential to have a clerk, and what such service is worth.
.As to the charges for sendees in the matter of the Eyack Electric & Power Company, consisting of three items, aggregating $40, the same are allowable only to the extent that legal services were necessary. Much of the services charged for were such that any person of ordinary business capacity could have • rendered; such as the search for, and correspondence as to, the lost certificate of stock, and also the collection of the dividends. As we have seen from a uniform line of authorities, such service should have been rendered by the administrator or its agents, and the statutory commissions are the compensation therefor. It would seem, however, that the services performed in giving the notice as to the loss of the certificate, and the giving of the bond of indemnity to obtain the new certificate, were of a legal character, requiring the service of one having some special legal knowledge, and, that being so, the administrator was justified in the employment of an attorney for those purposes, and I accordingly allow a credit for the same to the amount of $15.
Following the above matter are charges for services in regard to several western (Iowa) mortgages, known as the Hannon, East, Sumner, Crawford and Daubendick securities. It appears from the testimony, as also from the bill of Snider & Hopper, that, these services were wholly in the form of correspondence and inquiries by Mr. Snider of the western agents or attorneys who had charge of the same at the time of the intestate’s death. All legal services in relation to them seem to have been performed by the western agents or attorneys, and who appear to have been employed and paid to attend to those legal •matters. I find nothing specified in the testimony as to the performance by Snider & Hopper, of any service requiring special legal knowledge or experience. Indeed, I rest this proposition entirely upon Mr. Snider’s testimony. The following is an extract from the same: “Vi1 hat was there about that Sumner matter that required the services of an attorney, as distinguished from such services as ati officer of the trust company could per
This testimony shows without question a contract of employment between Snider & Hopper and the administrator, and for any and all services performed thereunder the administrator became individually responsible and liable, and is legally obligated to pay. But as to that this court has nothing whatever to do. That is á matter to be adjusted and determined as between the attorneys and the trust company individually, and not as administrator. We have here only to do with the question as to whether the expenditures are properly chargeable against the estate as between the parties interested in the estate and the administrator, and, as we have already made it appear from the statute and authorities construing the same, for such services as were rendered with reference to those securities the administrator cannot charge the estate or be reimbursed therefrom, as the commissions are the compensation for that work. If the administrator sees fit to not personally perform these ordinary services attendant upon the performance of the trust he assumes, but employs an agent or attorney to perform the same, then he must individually make payment therefor. The charges for the services rendered in relation to these securities are ac
In the Grove matter there appears to have been a litigation pending at the time of the death of the intestate in which the intestate was represented by an attorney by the name of John J. Gleason. Hothing whatever-has been done in that matter since the intestate’s death, except to pay Mr. Gleason’s bill for his services, and obtain the papers from him with his consent to a substitution of another attorney for the administrator. This matter may be eliminated from consideration at this accounting, «and reserved for disposition upon a future accounting, when the litigation may be finally adjusted or determined. Inquiry as to the bank stock and Balch and Haring notes were all the services that were rendered as to those matters, and, for reasons already assigned as to other similar charges, the same are not allowed. The claim for reimbursement for services in reference to the Brigantine Beach properties was withdrawn, as the same related to the real estate over which the administrator had no jurisdiction or supervision. A decree may be settled and entered accordingly.