Field v. Field , 2 Redf. 160 ( 1876 )

The Surrogate.

The history of this case affords an illustration of the frequently loose manner in which proceedings are conducted by counsel. Often, the gravity of the questions, and interests involved, are, from the pressure of other business, overlooked, as they would not prob-. ably be in proceedings in other courts, where rules are established for the government and guidance of counsel. It is exceedingly nnsatisfactory that a matter should be permitted to drift along from week to week and month to month, without much else being accomplished than to meet and adjourn by consent, or by reason of the absence of counsel. It results from such a course, that, in process of time, the court, and possibly the counsel, in a great measure, lose sight of the questions involved, and only recall them after considerable study and effort. In this very case, it is now impossible forme to conjecture why the order granting leave to issue execution was not granted on the day when the executor filed his account, or “statement.” It is not, therefore, surprising that I should fail to recall occasional conversations of counsel about any of the matters involved. The higher courts have long established rules to the effect that they will disregard all agreements, or stipulations of counsel not reduced to writing, and signed. So, an admission of facts, in a proceeding, should be reduced to writing, to be of any effect, for the reason that it will not be safe to trust to the frailty of memory, especially after the lapse of a considerable period.

In this proceeding, which was commenced in April, last, and concluded in July, following, I have nothing whatever before me, except the petition an <1 the account. Hot a particle of testimony was taken, and tl: e only admission made by the parties is embodied in the account as a charge against the executor, in my own handwriting, as follows: “ Yerk’s mortgage (admitted) $2,589.” Had a request been made that other admissions, if any, affecting the matte:; should be reduced to writing, doubtless it would have been done. Of casual conversations between counsel, the court cannot be expected to take note. I certainly have no recollection of hearing it said that the Archer claim was then being litigated; while I have a positive recollection that there was conversatio u about an intention to appeal to the Court of Appeals from the judgment in question. Certainly, no request was made that any sum should be reserved for costs, in either of the cases, and the account, or “ statement” of the executor, on file, does not state the existence of litigation in regard to any claim. It seems to me, however, that if both facts had been written down as admissions, there would have been no mistake or error committed, which would warrant this court invvacating the order granting leave to issue execution!4

Has this court power to authorize an executor, or administrator, to retain moneys of the estate, to meet the probable expenses of a present, or prospective litigation? The only provision I have been able to find in the statute, on the subject, is as follows: “ If upon the representation of an executor or administrator, or otherwise, it shall appear to the satisfaction of the Surrogate, that any claim exists against the estate of the deceased, which is not then due, or upon which a suit is then pending, he shall allow a sum sufficient to satisfy such claim, or the proportion to which it may be entitled, to be retained for the purpose of being applied to the payment of such claim when due, or when recovered, or of beingdistributed according to law.” (3 R. S., 5th Ed., 183, § 74; 6 ed. p. 104, § 89; see Hallett v. Hare, 5 Paige, 315.)

In fixing the amount for which execution should issue, the Archer claim was taken into consideration, and the executor permitted to retain the full proper proportion thereof, besides his commissions. Can this court go farther and authorize him to retain the uncertain and unascertained costs of a present or future action ? To do this properly, it would be required to know, in advance, whether the tribunal in which it was, or might be pending, would award costs to be paid by the executor personally, or out of the fund. If the former, then the executor could made no charges as against the estate, even as between attorney and client, to the prejudice of creditors of the estate. (Hosack v. Rogers, 9 Paige, 461.)

The Commissioners, now engaged on a revision of the statutes, propose to amend section 74, above quoted, by requiring the decree to direct that a sum sufficient to pay an outstanding claim, or the proportion to which it is entitled, “ together with the probable amount of the interest and costs,” be retained, &c. Until some such provision shall be enacted, I do not well see how this court, being a creature of the statute, and having its power prescribed and limited by legislative enactments, can assume, as among its incidental powers, that of ordering a sum to be reserved to meet the costs and expenses of a litigation, even where the facts are properly presented to it.

I certainly can discover no mistake or error committed, as against this executor, which would justify me in reopening the matter (Wright’s accounting, 16 Abb. Pr. N. S., 446). ^* Possibly, without due consideration, my attention, not having been called to it by counsel, an error may have been committed, in deducting from the amount of the assets, the $1,730 claimed by counsel, for professional services, rendered, in part, as I understand, in the very action which resulted in the judgment in question. The effect is to cause this creditor to contribute toward paying the charges of his adversary in resisting the claim, when the court had awarded costs to the creditor himself. In reality, the amount of Ms recovery would he thereby diminished, for that purpose. This cannot be done. (Hosack v. Rogers, supra.) Indeed, there was no proof before me, that the bills of Calvin Frost and J. S. Millard were for legal services, but the counsel for the judgment creditor seems to have assumed them to be such, and it was not asked that they should stand upon the footing of any other unsettled claims. If they consist of charges for professional service rendered for the executor, then they are claims against him, and not66 against the estate of the deceased,” referred to, and provided for, in section 74,

It is nrged as one reason why tMs application, should be granted, that the order sought to be vacated, was taken by default. It can scarcely be considered a default, where counsel appears, files his papers, says, what he has to say, and subsequently fails to appear on the various days to wMch the matter was adjourned, in order to give him an opportunity to be further heard, should he desire it. I believe such was the case here, and the order was only made when it became quite evident that he regarded the case as closed, in so far as the executor was concerned. Besides, in order to the opening of a default, even, it must he made to appear that the defaulting party has suffered loss or injury in consequence, which justice requires he should be permitted to recover or repair. Here I fail to see how the executor would be benefited by reopening the matter. Quite the contrary, if the views above expressed, are correct.

The application demed with costs.

* Compare People ex rel Wright v. Coffin, 7 Hun, 608.