Opinion
June 25, 1907.
Frank Talbot, for the appellant.
Andrew J. Nellis, for the respondent.
The correction or modification was apparently made because the respondent believed that the words "on account thereof" contained in the decree as entered, limited the surrogate, upon the supplemental account directed to be filed by the executor, to allowing such expenses only as related to the interest, income or accretion of the property and prohibited the allowance of any other expenses in the management of the estate subsequent to the former accounting. If there have been any legitimate or lawful expenses incurred by this executor subsequent to that date, we see no reason why the surrogate should not pass upon them in the supplemental account, nor do we conceive how the appellant is aggrieved by the order appealed from. Counsel for the appellant seems to fear that it was the purpose of the order to procure the allowance to the executor and the payment out of the estate of large sums for counsel fees and expenses in the litigation which the executor has had with this appellant in endeavoring to procure a substantial proportion of the estate for himself in reduction of her share. It is unimportant for us to consider here whether these fears are well founded or not for the reason that any claim of that kind on his part must first be presented in his supplemental account to the surrogate where the appellant, if she contests the account, will have full opportunity to be heard in opposition thereto, and where the surrogate must then pass, in the first instance, upon the question as to whether any charges or expenses of that or any other character there included are legal and proper charges against the estate. There is nothing in the order appealed from which will permit the surrogate, if he was so inclined, to allow any expenses of any other character to be paid out of this estate. The order simply permits him to pass upon any claim for necessary expenses due said executor that may be presented, but gives him no authority to allow any improper or illegal claims. For these reasons the order should be affirmed, with ten dollars costs and disbursements.
All concurred.
Order affirmed, with ten dollars costs and disbursements.