Storrs, C. J.
The question presented in this case, is, whether the court of probate, to which the settlement of the estate of Mr. Montague appertained, properly allowed to the appellee in the superior court, the administrator on that estate, on the adjustment of his administration account, the charges for his services and disbursements in resisting the appeal taken by the appellant from the decree of the court of probate accepting and approving the sale of the estate under the first order of sale made by that court, and in bringing and prosecuting the application to that court for the second order to sell that estate. Those disbursements were for the services of counsel on that appeal and application, and the fees of the court of probate on the latter, and on the adjustment of the charges in question, and for some incidental expenses attending those proceedings. The plaintiff in error, the appellant in the superior court, claims that from the report of the committee in that court, it appeared, in regard to the appeal from the decree of the court of probate accepting and approving the sale under the first order, that the appellee, in resisting that appeal, was guilty of positive misconduct and a violation. of his duty as administrator, for that the sale being void in consequence of the manner in which it was conducted, it was the duty of the administrator to suffer the order approving it to be vacated without objection, and not to put the estate to the unnecessary and fruitless expense of *238resistingthe proceedings instituted for that purpose; and that, in respect to the second order of sale, it was unnecessary to obtain it, because the first order being confessedly valid, and not having been executed, the sale made under it being void, it was not only competent for the administrator, but his duty, to proceed under that same order to make a further and regular sale of the estate; and that if a second order of sale was necessary, such necessity was created by the misconduct or neglect of duty of the administrator himself in not making a valid sale under the first order. The administrator in this case, on the most obvious principles of justice, was not entitled to charge against the estate expenses incurred by him unnecessarily, or through his own misconduct and violation of official duty ; and the cases cited by the plaintiff in error most fully establish the rule that such charges should be disallowed in the settlement of his account. If, therefore, the imputations. thus made on him are substantiated, the decree of the court of probate, accepting and allowing his administration account ought to have been reversed by the superior court. Positive misconduct and violation of duty on the part of an administrator, form an absolute and unqualified bar to any claim for an expenditure which is caused by it. As to disbursements which ultimately prove to have been unnecessary, we do not mean to say that they are not to be allowed, if, when they were made by him, there was good reason to believe that they were necessary for the interest of those concerned in the estate, and they were made in good faith ; but where there have been such expenditures, it rests upon the administrator to show some just excuse or explanation of them, before he can legally claim their allowance. He should not be reimbursed for a useless expenditure, unless he shows, not only the purpose for which it was made, but that it was made under such circumstances and for such a reason as justified him in thus disposing of the estate under his charge, which we think he has not done in this case. No reason for the application for the second order of sale is stated in it, excepting simply that the title to the land sold under the first failed on the ground that such sale *239was void. It does not allege, nor does it very distinctly appear in the report of the committee, in what particular that sale was defective. It was presumably owing to some fault in the administrator, whose duty it was to make it and see that the proceedings on such sale were in all respects regular and fair, and it is, to say the least, questionable whether it does not sufficiently appear from that report, that it was pronounced invalid by the jury on the ground that it was fraudulently or improperly conducted by the administrator. But, without deciding upon the effect or import of the finding in this respect, it is not only found by the committee, but alleged in and made the ground for the application for the second order, that that sale was in fact invalidated and set aside in the action of ejectment brought for the land sold by a purchaser of it from the heirs of the intestate, and that, in consequence of the judgment in that suit in favor of such purchaser, he recovered the seisin and possession of it from the grantee of the purchaser of it on the administrator’s sale under the first order.
Hence, it is obvious that if it was necessary in consequence of the irregularity in the sale under the first order to' procure another, it must be deemed to have been rendered so by the neglect or violation of duty on the part of the administrator in conducting that sale, and therefore that it would be unjust towards those interested in the estate that it should be charged by him with the expenses of obtaining the second order of sale, especially as the expenses of procuring and selling under the first must have been already allowed by the court of probate out of the estate. But, in our opinion, a second order of sale was unnecessary. It constituted no good reason for an application for it, that the sale under the first was avoided and the title under it defeated for an irregularity in the proceedings under it. It not having been properly executed, it was not vacated or annulled, but remained in full force and effect, and it was therefore in the power and was the duty of the administrator to proceed under it and sell the estate again. Without inquiring specifically into the reasons why the first sale was defective, or *240whether it was owing to actual fraud on the part of the administrator in conducting it, as is claimed by the plaintiff in error, we think that the second order of sale being unnecessarily procured, the expenditures and services of the administrator upon the application for it ought to have been disallowed. In regard to his expenses in defending the appeal taken from the decree of the court of probate accepting the return of sale under the first order, as that sale was, for whatever cause, defective, and the title of the purchaser under it failed, it was the duty of the administrator to suffer that decree to be reversed without any opposition on his part. The sale being unavailing, it ought not to remain sanctioned on the records of the court of probate. Not that the approval of the sale would validate it, if it was irregular, although perhaps it would not be completely effectual until approved ; but the appellant in that case had an interest in instituting and prosecuting that appeal for the purpose at least of preventing an allowance to the administrator out of the estate of his charges for services and expenses in conducting an irregular and fruitless sale, and the judge of probate could ■not consistently disallow those charges so long as the proceedings on account of which they were made stood approbated by him. The expenses and services of the administrator in resisting the appeal from the acceptance of that sale, being incurred solely in defence of a void act of his own, ought therefore also to have been rejected by the court of probate.
For these reasons, the judgment of the superior court, affirming the decree of the court of probate appealed from in this case, is erroneous, and must be reversed.
In this opinion the other judges concurred.
Judgment reversed.