Higbie and others against Westlake et al., Adm'rs

Higbie and others against Westlake et al., Adm’rs. On a sale of lands, by order of the surrogate, to pay debts, the portion of the purchase money to be set apart and invested pursuant to the statute (2 R. S., 106, §37) for the widow, in lieu of dower, is the one-third of the gross amount, and not of the amount less the charges and expenses of the sale. Where interest on the purchase price accrues after the sale, and before the distribution, the one-third of it belongs to the widow. To entitle administrators to a per diem allowance for time spent in making the Sale (Laws of 1844, 447), it should be proved that the number of days for which the allowance is made were' necessarily occupied. Held, that two dollars a day, for one hundred and sixty days, was, on the evidence in this case, excessive. Administrators are entitled to but two dollars for preparing and executing each deed. The statute (Laws of 1844, supra) directing an allowance to be made to administrators of their expenses of conducting the sale, authorizes the payment of a reasonable amount for professional services in applying for and making it; but the foe bill of the former court of chancery, for services in litigated cases, is not applicable to such proceedings. A creditor may appeal froto a decree of distribution made by a surrogate, notwithstanding he receives, on account of his demand, the amount awarded to him by it. Appeal from a judgment of the supreme court modifying a decree or sentence of the surrogate of Kings county. B. and G. Westlake, the administrators of Jacob Westlake, deceased, pursuant to the statute applied to the surrogate for an order for the sale of his real estate, for the purpose of paying his debts. An- order was obtained, pursuant to which the lands of the deceased were sold, and the proceeds amounting, after the payment of certain taxes charged thereon, to $33,226.90, were brought into the surrogate’s court for distribution. Notice to the parties interested in the distribution was published, and on the 25th January, 1850, and on certain subsequent days to which the matter wras adjourned, the surrogate proceeded to make distribution of these moneys. Certain of the creditors of the intestate, and, among others, the present respondents, appeared by counsel. The surrogate, in the first place, set apart one-third part of the above mentioned sum to be invested for the benefit of the widow of the testator, who had refused to accept a gross sum in lieu of dower. The question upon this part of the case wTas, whether she was entitled to one-third of the gross proceeds of the sales of the real estate, or whether the expenses of those sales should be first deducted, and the sum set apart for the widow should be one-third of the residue, the creditors contending for the latter rule, but the surrogate ruled otherwise. It appeared that certain bonds and mortgages of the purchasers had been taken on the sale of the real estate, upon which interest had accrued at the time of the distribution. The surrogate added one-third of the interest, amounting to $151.03, to the third part of the proceeds of the sales, and ordered that the aggregate of this sum should be invested, and the interest paid to the widow during her life. He also allowed the aggregate amount of $1544.44 for the expenses of the sales of the real estate; and the principal controversy between the administrators and the creditors was as to certain portions of this allowance. The following amounts were allowed by the surrogate, which were affirmed by the supreme court, and as to them there is now no controversy : traveling expenses of Gr. Westlake, one of the administrators, $35.56; surrogate’s fees, $49.75; lithographer’s bill and map, $29.75; bill of W. Maxwell, for sundry legal services and drawing papers, $25; posting notices of sale, 50c.; costs of the guardian for the infants, $20. Besides these items, the administrators claimed and the surrogate allowed the following charges: for one hundred and sixty days spent by the administrators in and about “the settlement and sale ” of said real estate, at $2 per day, $320 ; for horses and carriages hired and used in the business of the estate, $32.70; for services of the attorneys for the administrators, including certain disbursements, $1041.12. The only real evidence before the surrogate was the testimony of G-. Westlake, one of the administrators, who was examined as a witness at the instance of the creditors. He testified that he resided in Elmira, and that the other administrator’ lived in Williamsburgh. A portion of the land sold was situated in Chemung county, and the remainder in Kings. The sale in Kings occupied only one day, and that in Chemung was made on two different days. There were about twenty-five parcels of land. As to the allowance to the administrators for time spent, the witness testified, on an examination in his own behalf, as follows : “ From the time he and his co-administrator commenced applying to sell the real estate of Jacob Westlake, deceased, we were (or rather I was) almost exclusively engaged in preparing for and making the sale of this real estate. I came two or three times from Elmira on business connected with the sale of this real estate. We spent considerable time in removing objections to the title, paying back taxes, &c. It was thirty days after the sale before the deeds were all delivered. I spent eighteen days in collecting receipts of money and obtaining deeds from the sales in the county. It is nearly three hundred miles from Elmira to Brooklyn. I should think that I myself had spent some one hundred and fifty days in preparing the petition and making the sale. I have been kept almost entirely from any other business by the sale of this property. I could not establish myself in any -other business while I was conducting these sales.” The administrators presented the receipt of the attorneys for the amount of their bill, above mentioned, and a bill, made out with reference to the former fee bill, for services of attorneys and counsel in the court of chancery in contested suits, and including a general counsel fee of $250, the wdiole amount ing to the sum of $1041.12, above mentioned. "After deducting the above mentioned aggregate of expenses from the residue of the proceeds of the sale, which was left after taking out the widow’s one-third, the surrogate ordered the balance which was insufficient to pay all the debts, to be distributed pro rata among the creditors. They received their dividends and gave receipts to the administrators, expressed to be on account; and the present respondents, being creditors, then appealed to the supreme court. After a hearing in that* court, at a general term in the second district, a judgment was given affirming the decision of the surrogate as to the right of the widow to one-third of the gross proceeds of the sale, but-reversing that part of his decree by which $151.03, for one-third of the accrued interest, was added to the sum to be invested for her benefit. Instead of the allowance to the administrators for one hundred and sixty days of time spent, the supreme court allowed $60 for thirty days, at $2 per day; and they disallowed the charge for the hire of horses and carriages. As to the bill for attorneys and counsel fees, the supreme court allowed $50 for drawing papers, and $36 for drawing eighteen deeds of land. They also allowed the disbursements charged in the bill, except a charge of $45 for printing deeds and copies of orders. These items, together with the undisputed charges, amounted together to $427.62, instead of $1554.44, allowed by the surrogate. The judgment of the supreme court modified the decree of the surrogate accordingly. The administrators and the widow of the intestate appealed from that judgment to this court. Lott C. Clark, for the appellant. John Van Buren, for the respondents. [MAJORITY — Denio, C. J.] Denio, C. J. The supreme court was correct in holding that the widow was entitled to one-third of the gross amount of the sales of the real estate. A widow’s title to dower is not prejudiced by debts and incumbrances incurred by her husband. She ought not, therefore, to be compelled to contribute to the expenses, occasioned by the existence of such debts. Independently of the statute authorizing these sales, she would be entitled to one-third in value of her husband’s lands, to be set off to her by metes and bounds. A fair equivalent for such assignment of dower is the interest upon one-third of the value of such lands, to be ascertained by offering them at auction. This is what the statute intended to give her in lieu of dower in cases where the lands charged with a claim of dower are sold to pay the debts of the husband. Where she does not elect to receive a gross sum in lieu of dower, the surrogate is to “ set apart one-third part GÍ the purchase money ” of the lands sold, to be invested in permanent securities, &c. (2 R. S., 106, § 37.) I do not perceive the propriety of including the interest which had accrued on one-third of the purchase money from the day of the sale to the time of the distribution, in the amount to be invested for the benefit of the widow. She was entitled to the interest absolutely; and the provision in the decree which directed it to be invested as a part of the principal, was more favorable to the creditors than an order requiring it to be paid to her directly, for, by making' it a part of the capital, they will be entitled to have it distributed among themselves at the death of the widow. (§46.) But the supreme court erred in disturbing this part of the decree. The creditors, who alone appealed, had no claim to this interest, and if the widow was satisfied with the disposition which was made of it, no one else had a right to complain. The allowance to the administrators by the surrogate’s decree, for their own services, was grossly excessive. There was no evidence to show that there was a difficulty in finding out what lands the intestate was seized of, or in ascertaining the amount of his debts, or that the business was in any respect complicated. The statute allows executors and administrators in such cases, over and above their expenses, “ a compensation not éxceeding two dollars a day, for the time necessarily occupied in such sale.” (Laws 1844, 447.) If it be conceded that this language would embrace the time necessarily spent in preparing for the sale, there is no evidence to show, and no reason to believe, that the time allowed by. the judgment of the supreme court would not be amply sufficient. The evidence of the administrator, who was examined as a witness, is quite unsatisfactory. He does not state what in particular he did, or what was to be done. He says, indeed, that he thinks he spent one hundred and forty days in preparing the petition and making the sales. The sales occupied but three days at the utmost, and the drawing of the petition is charged for by the attorneys, and allowed to the administrators as a disbursement. Doubtless some time would be consumed in looking tip the testator’s title papers, and in ascertaining the description of the land and the condition of the title; but no particulars as to this are given in the testimony. The administrator swears to one hundred and forty days, nearly five months in gross; and to justify the charge, he says he could not establish himself in any other business while this matter was going on. No'facts are shown to prove that such an exclusive devotion of the administrator’s time to this business was necessary. The statute contemplates only an allowance for time necessarily and actually occupied about the sale. It does mot warrant the idea, which seems to have been entertained by this administrator, that lie was upon a salary from the commencement to the conclusion of the business. We think the allowance of $60, made by the supreme court, was quite liberal. In the bill of costs $132 are charged for drawing and engrossing eighteen deeds of the lands sold, and $45, in addition, as a disbursement for printingthem. The statute contemplates that the deeds are to be prepared by the administrar tors, audit allows them $2 for each deed. (Laws of 1844, supra.) The supreme court accordingly reduced the allowance for the deeds to $36. This was correct. For the other services of the attorneys the court allowed only the sum of $50 under the head of a charge for drawing papers. The administrators are, by the statute, to be allowed “ their expenses in conducting such sale.” It requires a liberal interpretation of this language to enable it to cover professional services for attending to the application before the surrogate, and for drawing the petition and the necessary orders, and seeing to the service of the citations and the publication of the notices; and yet I can scarcely conceive of a case where the services of an intelligent and careful attorney would be more necessary, as any substantial error in the proceedings would generally defeat the title of the purchaser. The statute seems to suppose that these proceedings would be conducted wholly by the administrators and the surrogate, and that there would be no necessity for legal advice or assistance ; but I regard it as so essential that there should be the supervision of some qualified person, that I would hold that a reasonable allowance for professional advice and-assistance would be a necessary expense within the meaning of the act of the legislature. The bill of costs presented by the administrators in this case was wholly inapplicable, and the amount charged and allowed was far beyond a reasonable compensation for the service. It is to be observed that there was no contest or litigation throughout the proceeding. It was for the most part business which might be performed by a clerkand although the papers appear, from the charges in the bill, to have been voluminous, it is probable they were made up, in the main, of descriptions of the land and copies of the orders If evidence had been given showing the character and extent of the services, it is possible and even probable that a greater allowance than the one made by the supreme court would have been appropriated. But in the absence of such proof, we have no data for pronouncing that allowanee inadequate. We see clearly that the sum allowed by the surrogate was quite too large, and that judgment w*as therefore properly reversed by the supreme court. If the allowance substituted by that court was too limited in ¿mount, it is the fault of the present appellants, in failing to give precise evidence as to the character and value of the services, which deprives this court of the power of correcting it. There is no weight in the objection that the creditors who appealed had received their dividends under the decree of the surrogate. (Clowes v. Dickenson, 8 Cow., 328, 331.) They were certainly entitled to the amount paid them, and there was no inconsistency on their part in receiving that amount, and then appealing for the purpose of obtaining a reduction of the allowance for expenses, which would give them a further dividend. There was no proof of any expenditure for horse hire, and that item was therefore properly disallowed. The portion of the judgment of the supreme court which relates to the sum of $150.03 must be reversed; in other respects the judgment should be affirmed, but the litigation upon that subject was so unimportant that it ought not to influence the question of costs. The judgment of the supreme court being affirmed in all its material points, the appellants should pay costs. T. A. Johnson delivered an opinion in favor of the same result. Judgment accordingly.