#### Matter of the Judicial Settlement of the Accounts of Almeda N. Whitney and William H. Phillips, as Executrix and Executor of the Will of Lewis H. Whitney, Deceased.

(Surrogate’s Court, St. Lawrence County,

February, 1912.)

Executors and administrators — Rights, duties and, liabilities—Administrative authority and management of estate — Rights, and liabilities between representative and estate — Counsel fees — Costs .or allowances to counsel.

Where the expenditure for.permanent improvements made to an estate is for the best interests of the remaindermen as well as the life tenant and does not contravene the terms of the will, the cost should be paid out of the corpus of the estate or *t*apportioned between the life tenant and the remaindermen according to the benefit accruing to each.

Where part of an estate-"devised and bequeathed to testator’s wife for life, “ to be used and enjoyed by her without molestation or hindrance from any one,” consisted of a farm, and prior to the receipt of- a letter, from the department of health of the city of New York to the tenant of the farm who shipped the milk therer from to said city, stating that upon analysis the water in the well near the farm house was found to be contaminated “ and unfit for use in the washing of milk pails and utensils ” the life tenant, from funds in her hands as executrix, paid the cost of deepening and properly piping the well, which expense was absolutely necessary to insure an ample supply of good water for use on the farm, she will be allowed on the judicial settlement of the estate the cost of such expenditure out of the corpus of the estate as against the objection of one of the remaindermen and her. husband, the coexecutor.

The estate cannot be charged with the expenses of the executor in the employment of counsel to oppose a motion by the executrix to compel him to deliver to her certain personal property of the estate then in his "hands upon which he claimed commissions.

Proceeding upon the judicial settlement of the account of executors. ■

George H. Bowers, for Almeda E. Whitney, executrix.

Vasco P. Abbott, for William H. Phillips, executor, and Cornelia W. Phillips.

*611Hebbimaw, S.

Lewis H. Whitney died in the year 1901, • and-by his will gave to his wife, Almeda hi. Whitney, the use during life of his entire estate, “ to be used and enjoyed by her without molestation. or hindrance from any one.” Upon .the death of Mrs. Whitney, the estate is given to the son and two daughters of the testator. The said Almeda If. Whitney is executrix and William H. Phillips, the husband of one of the daughters, is executor, “ with power to sell and convey real estate.” Part of the estate consists of a farm which has been in the possession of a tenant under Mrs. Whitney for a number of years. At the time of the death of the testator there were three sources of water supply upon the farm, namely, a well between the house and barn, convenient to each, a well in the barn "and a spring in a lot about seventy-five rods from the barn. The well between the house and barn was only twelve feet deep and became practically dry during the summer months. The water in this well, when low, Was of a very poor quality, and unfit for either cooking or washing purposes. The well in the ham was a drilled well eighty feet deep, but so situated that in the spring ' it was contaminated by the surface drainage from the barn and could not then be used. The spring in the lot was stoned up, and it does not appear that it was dry at any time of the year; but it was so far from the buildings that it could not conveniently be used as a source of supply for either the house or barns. These conditions remained unchanged until early in the fall of 1910. At that time the milk from the farm was sent to a milk station from which it was shipped to Mew York city. Representatives from the' department of-health of the city of ¡New York made an examination of the well near the house and of the water in the well, which was at that time very low, and stated to the tenant that a pure water supply must be had if the milk.was to be received in ¡New York city. Thereupon the life tenant and executrix had this well deepened to a depth of sixty-four feet and properly piped at an expense of $230.22, which was paid from funds of the estate in her hands as executrix and which insured an ample supply of good water for use on the farm. A letter from an official of the department of health of ¡N"ew York city to the *612tenant on the farm dated September 30, 1910, after this work had been done, but evidently before the department had knowledge of it, stated that the water had been found upon analysis to be contaminated “ and unfit for use in the washing of milk pails and utensils.” This letter further stated that a reinspection would be made in October, when a pure supply of water must be found in use, if milk from the farm was to continue to enter the city, which is one of the principal markets for milk from this part of the State. It is not denied that the improvement of-the well increased the valué of the farm to the full extent of its cost. The life tenant and executrix asks to be allowed for this expenditure out of the *corpus*of the estate. Two of the three remaindermen consent that this be done, the only one opposing.it being Cornelia W. Phillips and her husband, the executor.

While the general rule undoubtedly is that repairs and im- ■ provements cannot be made at the expense of the remainder-men but must be borne by the life tenant, this rule has been somewhat relaxed by late decisions, and the courts have become inclined to hold that, where improvements of a permanent character have been made to the estate, by compulsion, as in the case of municipal improvements to be paid for by taxation, or where buildings become untenantable without neglect on the part of the life tenant, or where improvements are necessary by reason of changed conditions, or in order to obtain a reasonable return from property which is unproductive, and the expenditure for such improvements is for the best interests of the remaindermen as well as the life tenant, and does not contravene the terms of the instrument creating the life estate and the estate in remainder, the cost of such improvements should be paid out of the *corpus*of the estate or apportioned between the life tenant and the remaindermen according to the benefit accruing- to each. Chamberlin v. Gleason, 163 N. Y. 214, 219; Stevens v. Melcher, 152 id. 551; Matter of Braunsdorf, 2 App. Div. 73; Matter of Deckelmann, 84 Hun, 416.

In the case at bar there is -no dispute that the deepening of the well was almost an absolute necessity. It certainly was an act of good husbandry. That it increased the permanent *613value of the farm by the entire amount of its cost or more is not denied, and the remaindermen will, therefore, lose nothing if the expenditure is charged to the *corpus*of the estate. So far as they are concerned, it merely amounts to a change in the character of a small part of their inheritance from personal to real estate. All the remaindermen are adults. Two of them approve of the acts of the executrix. There is nothing in the will which expressly, or by implication, forbids an expenditure of this kind. On the contrary, the language of the will is broader than that usually employed in the creation of a life estate; for it'gives to the widow not merely such income as might be derived from an investment of the funds of the estate, but *“*the use during her natural life of all the property real and personal * * "x" the1 same to be used and enjoyed by her without molestation or hindrance from any one.” The claim is certainly equitable and fair, and should be allowed if its allowance can be justified under the law. It seems to me that the decisions above cited afford ample authority for such allowance.

The executor asks to be allowed for an expenditure of forty-four dollars and ten cents, being ten dollars paid to one attorney, fifteen dollars to another attorney, and nineteen dollars and ten cents for expenses, all in attempting to defeat a motion made by Mrs. Whitney, in 1905, for an order requiring the executor to deliver to her certain personal property of the estate then in his hands upon which he claimed commissions. His contention was disallowed at that time. He should not be allowed to charge the estate for this expenditure made for his personal interests and in support of an invalid claim.

The executrix is allowed fifty dollars, in addition to her disbursements to be taxed, payable out of the estate, as the expense of this accounting.

Counsel may prepare findings and decree in accordance .with the foregoing and settle the same on two days’ notice.

Decreed accordingly.