#### Wm. Wham et al. *v.*James M. Love, Adm’r, et al.

An administrator is entitled to all expenditures made by him for the preservation and benefit of the estate in his hands; as for expenses incurred in resisting a questionable claim set up against the intestate or other demand of a Hire character tending to reduce the value of the estate and diminish the interests of the distributees. So for fees ¿aid in the course of administration to the ordinary or other officers. So, also, for fees paid for general advice as to the most proper and profitable course of administration.

But costs and fees incurrred by th'e administrator in resisting the claim of the distributees can never be allowed as a suitable charge on the estate.

*Before DUNKIN, Chancellor, at York, June Term,*1838.

On the 2d of April, 1832, the plaintiffs filed their bill, styling themselves grand-children of the late Eleanor J. Grier, of York district, who had died intestate, against James M. Love, hér administrator, and against the other defendants, who are admitted to be grand nephews and grand nieces of said intestate. The object of the bill was to claim for the plaintiffs the real and personal property of which the intestate died possessed.

The answers of all the defendants denied the plaintiffs’ claim, and insisted that they, the defendants, were the distributees of Mrs. Grier; and the answer of James M. Love adds, that they (the plaintiffs) are foreigners, and, for all he (Love) knows, they are foreigners themselves; and this defendant insists they shall prove every thing necessary to the establishment of their title.

At July term, 1833, the court directed an issue at law to try and determine “ whether the plaintiffs are the distributees of the intestate, and entitled to her estate.”

At June term, 1834, the commissioner was ordered to sell the real estate: which order he executed, and collected the proceeds of sale.

At October term, of the Common Pleas, the issue was tried; and the jury found that the plaintiffs were the grand children and distributees of the intestate.

*52At July term, 1837, the verdict was returned into this court; and a motion was made before Chancellor Johnston, for a new trial,* which he overruled. At the same time he passed a decre-tal order, that the administrator, Love, account to the plaintiffs, before the commissioner, touching his administration.

From the decretal order for an account, no appeal was taken, but from the judgment, overruling the motion for a new trial, the defendants appealed ; and at May term, 1838, the appeal was dismissed, and the judgment affirmed.

June term, 1838, the plaintiffs moved for an order that the proceeds of the land in the hands of the commissioner be paid over to them. This motion was resisted by the defendants, who con*53tended that the plaintiffs were aliens; and offered evidence to show that the jury had not decided upon their alienage, but only upon their legitimacy. Chancellor Dunkin rejected the evidence, and granted the order moved for upon the ground that lhe point was concluded by the record.

The report of the commissioner upon the accounts of the administrator came up at the same term; to which two exceptions, on his behalf, were put in. The first objected to the report, for charging the administrator with interest on the funds in his hands. The second, because the commissioner had refused to credit the administrator with the amount expended by him for costs and counsel fees in this suit. The decree was as follows:

Chancellor Dunkin. It does not appear to me, that a case is made to exempt the administrator from the operation of the general rule, which requires him to pay interest on the fund in his hands — (Pace v. Burton, 1 M’C. Ch. R. 250.) If he had found difficulty in making interest, he might have obtained leave, I suppose, at any stage of the proceedings, to pay the money into court. The first exception is overruled.

In respect to the second, I have come to a different conclusion. The defendant became administrator by consent of all the parties, at a time when the right of the plaintiffs was certainly doubtful. On the trial of the issue, there was much and strong testimony on both sides; and, although the court was well satisfied with the result, it would, perhaps, have been difficult to disturb the verdict if the jury had adopted a different conclusion. If a third person had administered, I think there can be no doubt he would have been entitled to credit for both costs and counsel fees. I do not perceive why the administrator should be excluded merely because he had some interest in the result. It is ordered that the second exception be overruled; and the report reformed accordingly.”

From this decree the plaintiffs appealed, as regards the second exception.

*

**Wm. Wham et al. *v.*James M. Love et al.

This was a feigned issue from the Court of Chancery, tried at York, Pall Term, 1836, in the Circuit (Law) Court. The jury found for the plaintiffs, and defendants moved before Johnston, Ch., for a new trial, on the following grounds:

1. Because, from the whole case made, the jury should have found for defendants.

2. Because his honor, the presiding judge allowed a commission to he read of Mrs. Woodside’s, formerly taken out by complainant, and which had been opened and read on a mistrial, when the defendant gave notice in July, that this witness should be examined by plaintiffs anew, if they wished her evidence, as the commission had been obtained by deceiving defendants, and had been previously opened.

3. Because the issue should be enlarged, and the jury directed to find whether Mrs. Grier was a feme covert when she intermarried with Grier, as the whole property she had, and which complainants are claiming, was the property of Grier, and she received it as his widow, being also his administra-trix.

4. Because the verdict is against law and' evidence.

*Williams,*for the motion.

Johnston, Chancellor. On hearing the grounds of the motion, in this case, the court is satisfied with the finding of the jury; and granting that the second ground is valid in law, and that the testimony of Mrs. Wood-sides ought to be stricken out altogether, the court still thinks that there is testimony enough, and more than enough, to authorize the verdict. As to the third ground, all the defendants claim under Mrs. Grier, and not adversely to her, and have no such interest as authorizes or requires the enlargement of the issue.

Cueia, per Johnston, Ch.

Without considering the order to account in the light of a judgment against the administrator, which, although silent on the subject of costs, according to our rule, throws *54the costs on the defeated party: the court is of opinion, that the exception which was sustained by the chancellor should have been overruled.

An administrator is certainly entitled to all expenditures made by him for the preservation and benefit of the estate in his hands: as for expenses incurred in resisting a questionable claim, set ,up against the intestate, or other demand of a like character, tending to reduce the value of the estate, and diminish the interests of the distributees. So for fees paid in the course of administration to the ordinary or other officers. So, also, for fees paid for general advice, as to the most proper and profitable course of administration. If any such expenditures as these were rejected by the commissioner, the exception should have been sustained to the extent of them. But costs and fees incurred in resisting the claim of the distributees can never be allowed as a suitable charge on the estate. If the administrator had not set up a claim for himself, but had taken a neutral position between his co-defendants, and the plaintiffs, he would have been entitled to his costs of suit; and they would probably have been awarded him in the decretal order of reference. But those, for which he now claims credit were not incurred for the benefit of the estate, but for his own benefit: and it would be exceedingly unjust to charge the plaintiffs with sums expended in keeping them out of the possession of property to which *the result*proves they were justly entitled.

The motion is granted; and it is ordered that the report be reformed agreeably to the foregoing opinion.

Johnson, Dunkin and Harpbe, Chancellors, concurred.