#### Ferguson, Administrator, Appellant, vs. Woods, Respondent—(McIntyre’s Estate).

*March 16*

April *5, 1905.*

*Executors and administrators: Judgment against, for costs: Priority of payment.*

Where an administrator was duly authorized, under sees. 3811. 3813, Stats. 1898, to bring an action to recover assets alleged to be a part of the estate of his decedent, and a judgment was recovered against him therein for costs and disbursements, such costs and disbursements were a part of the necessary expenses of administration, within the meaning of sec. 3852, payable out of the assets of the estate, with priority over general debts of the decedent

Appeal from a judgment of tbe circuit court for Milwaukee county: OebeN T. Williams, Circuit Judge.

*Affirmed’.*

This is an appeal from a judgment of tbe circuit court requiring *Id. T. Ferguson,*as administrator of tbe estate of Mary McIntyre, deceased, to pay a judgment against liim as sucb administrator and in favor of *Mary Ann Woods.*Issue being joined and trial bad, tbe circuit court found, as matters of fact, in effect: (1) Tbat May 24, 1901, *II.*T. *Ferguson*was appointed by tbe county court special administrator of tbe estate of Mary McIntyre, deceased, and qualified as sucb; (2) tbat May 31, 1901, by order of tbe county court, be was authorized to commence suit against *Mary Ann Woods*to recover certain assets alleged to belong to tbe said estate; (3) tbat June 11, .1901, Ferguson, as sucb administrator, commenced sucb suit in tbe circuit court; (4) tbat July 6, 1901, *Ferguson*was appointed administrator of tbe estate and qualified as sucb, and bas since acted as sucb administrator; (5) tbat February 5, 1903, tbat action was. tried in tbe circuit court, and at tbe close thereof was dismissed, and judgment was entered in the circuit court in favor of *Mary Ann Woods*for her costs and disbursements *545therein, taxed at $121.85, and that she recover the same against such administrator; (6) that August 18, 1903, an order was served on *Ferguson*requiring him to show cause why the amount of that judgment should not he paid out of the estate as part of the expenses of administration; (7) that November 11, 1903, that judgment was certified by the circuit court to the county court; (8) that November 11, 1903, *Ferguson*answered such order to show cause in the county court, and upon the hearing in that court it was adjudged that the amount of such judgment be paid to *Mary Ann*Woods, or her attorney, out of the estate, as part of the expenses of administration; (9) that *Ferguson,*as such administrator, appealed therefrom to the circuit court.

And as conclusions of law the court found, in effect, that the judgment for costs recovered by *Mary Ann Woods*against *H-. T.*Ferguson, as administrator of the estate of Mary McIntyre, deceased, in the circuit court, is entitled to be paid out of the estate of Mary McIntyre, deceased, as a part of the expense of administration; that the order of the county court appealed from be, and the same was thereby, affirmed, and judgment was ordered to be entered thereon accordingly, with costs in favor of the said *Mary Ann Woods.*Erom the judgment entered thereon accordingly the administrator, Ferguson, appeals.

Eor the appellant there was a brief by *O. W.*Bow, ancT. oral argument by *II.' T. Ferguson.*

They contended, *inter*alia, that under see. 3847, Stats. 1898, the judgment against the administrator should be “paid as other claims duly allowed against the estate.” This section and the two preceding it are clearly intended to provide for the payment of judgments rendered against administrators in all actions defended or prosecuted by them. All ordinary remedies for the collection of such judgments have been abolished. See secs. 3256 and 2932, Stats. 1898.

*546Eor tbe respondent there was a brief by *Fiebing & Xilli-lea,*and oral argument by *W. F. Adams.*

Cassoday, C. J.

This court has repeatedly declared that the right *to*and liability for costs in any action or proceeding in this state is regulated and governed entirely by the statutes. *In re Carroll’s Will,*53 Wis. 228, 233, 10 N. W. 375; *Wis. Cent. Co. v. Kneale,*79 Wis. 89, 95, 48 N. W. 248; *Nash v. Meggett,*89 Wis. 486, 494, 61 N. W. 283; *Estate of Cole,*102 Wis. 1, 11, 78 N. W. 402; *Dowling v. Fire Asso.*102 Wis. 383, 386, 78 N. W. 581; *In re Donges’s Estate,*103 Wis. 497, 513, 79 N. W. 786; *In re Will of Healy,*108 Wis. 632, 84 N. W. 835; *McMahon v. Snyder,*117 Wis. 463, 467, 94 N. W. 351. Pursuant to the statutes, such administrator was expressly authorized by the county court to commence the action he brought in the circuit court to recover certain assets alleged to be a part of the estate of Mary McIntyre, deceased. Secs. 3811, 3813, Stats. 1898; *Jones, v. Graham,*80 Wis. 6, 10, 49 N. W. 122. But the administrator was beaten in that action, and judgment was entered therein in favor of *Mary Ann Woods,*dismissing the action and for costs and disbursements, as mentioned in the foregoing statement, to be recovered from *Ferguson*as such administrator. The entry of such judgment seems to have been in strict accordance with the statute which provides, in effect, that in an action prosecuted or defended by an administrator, “unless otherwise specially provided, costs shall be recovered as in an action by and against a person prosecuting or defending in his own right; but such costs shall be chargeable only upon or collected of the estate, fund or party represented, unless the court shall direct the same to he paid by the plaintiff or defendant personally, for mismanagement or bad faith in such action or defense.” Sec. 2932, Stats. 1898. Here, there is no claim of any “mismanagement or bad faith,” much less any direction of the *547court that the administrator should be personally liable for such costs. *Wiesmann v.*Brighton, 83 Wis. 550, 53 N. W. 911. Another section of the statute relating to proceedings in county courts provides that:

> “If the assets received by the executor or administrator, and which can be appropriated to the payment of debts, shall not be sufficient he shall, *after paying necessary expenses of*administration, pay the debts against the estate in the” order therein prescribed. Sec. 3852, Stats. 1898.

In construing this section of the statute It was said by the late Justice Pinney, speaking for the court, that:

> “Where the administrator makes payment of a claim for proper and necessary counsel fees or other proper expenses of administration, he can charge the same in his account and have it allowed at a reasonable amount and paid out of the assets of the estate in his hands, and such claim will have priority over the general debts of the decedent.” *Miller v.*Tracy, 86 Wis. 330, 334, 56 N. W. 866; *Opitz v.*Karel, 118 Wis. 527, 536, 95 N. W. 948.

Since there was no “mismanagement” nor “bad faith in •such action” against *Mary Ann*Woods, it follows that the costs incurred in that action were “necessary expenses of administration” within the meaning of the section last cited. Certainly, such costs were not a claim against Mary McIntyre within the meaning of sec. 3838, Stats. 1898. *Brown v. McGee's Estate,*117 Wis. 389, 94 N. W. 363. Nor can that action be regarded as one pending at the time of the death of Mary McIntyre, within the meaning of secs. 3846, 3847, as claimed by counsel. The judgment is supported by the findings, and the findings are sustained by the evidence.

*By the Court.*— The judgment of the circuit court is affirmed.