I concur with Mr, Justice Clarice in the disposition that he has made of the questions arising upon this appeal, except in relation to the payments made to the administratrix by Frank M. Arguimbau. As to those payments, I think the estate had nothing to do with them, and that the .administratrix should not have been charged with the amount.. Both Mr. Justice Clarke in his opinion and the surrogate, assumed, as I view it, without proof, against the finding made by the referee, that these were payments made to influence the administratrix, acting in her official capacity, by which she obtained a personal benefit, and this case is thus brought within those cited, and upon which the conclusion is based. It is conceded that the course adopted by the administratrix was largely for the *219benefit of the estate and was the proper course to pursue under the circumstances, and that from the delay in ’enforcing the claim against the corporation no injury resulted to the estate, but, ofi the contrary, a distinct advantage. There can be no question but that the administratrix, by adopting the course pursued, assumed a liability for any injury that would result to the estate therefrom. If the corporation had become insolvent, I assume that the administratrix would have been . liable if it had been made to appear that the claim against the corporation could have been collected if proceedings therefor had been promptly instituted. In Considering this particular question we must remember that this administratrix occupied towards the estate two independent positions. She was the administratrix, chargéd with the duty of settling the estate and dividing the personal property among the next of kin. She was also the widow of the deceased and, as such, entitled to a distributive share of the estate.' She was totally without means and was entitled to' receive from the estate a portion of her distributive share thereof for her support. By section 2723 of the Code of Civil Procedure .the surrogate is'authorized to entertain a petition at any time after letters are granted for a payment to be made to a person entitled to a distributive share in the estate out of the money or other property in the hands of the • administrator applicable to the payment of the distributive share of the petitioner. The administratrix would. not have been justified if she had collected the personal property of the decedent in applying the money in her hands on' account of her distributive share in the estate, but having the property in her hands she would have been entitled to apply to the surrogate, under this section of the. Code, for permission tó pay to herself the amount of money necessary for her support. She was thus in a ppsition, not as administratrix, but as entitled to a distributive share of the estate, to apply for the payment to ..her of a portion of her share in the estate tó be used for her support. To accomplish that purpose it would have been necessary to collect from the corporation the money that it owed to the decedent; but it was only because the widow liad the right to have a portion of her distributive share paid to her that-such a proceeding against the corporation became imperative. To avoid this necessity, those interested in the corporation considered it to their advantage to *220provide her from their own means with a sufficient support during the time that the collection of the amount due from the corporation was delayed, There, Was no- question hére of influencing the admin- ■. istratrix to do any act that was inimical to the interest of the estate ; but on the contrary - the. proof clearly shows that the -making of . these payments to her by the individuals interested in the corporation cheated a. situation which enabled them to protect not only the -interests of the corporation in which they were interested but also the interests of the estate of which the accounting party was ,the .administratrix. It is^ I think, an extension of the principle . that an officer' of a corporation dr the trustee Of an express trust cannot accept any consideration for influencing his official action and that any money thus paid is nioney of the corporation or trust of which he. is. a representative to apply it to a case of this kind. Assuming that the widow of the decedent had not been the administratrix, but had insisted upon forcing the administratrix of the estate to collect sufficient money So that she could make an application to the i surrogate for a portion of her distributive-share, and that to prevent such ap application the officers of this corporation had voluntarily. . agreed.to contribute, out of their own property for her support, those' interested in the estate would certainly have -no-right to claim . that money thus paid was the property of the estate. - Yet the only claim made by the administratrix Was that,-in consequence' of her impoverished. condition, it Was necessary that she should have money to support herself. . I think these officers had a .perfect right to make this provision for the widow of the deceased and that . the money paid by them for her support pending the settlement of the estate was not money to which'the estate was entitled or which Should be charged against her.
' For these reasons I think the decree of the surrogate should be further modified by overruling the objection to the referee’s report •in this particular and the referee’s report in that respect confirmed.
Houghton, J\, concurred.
Decree modified as directed in opinion, and as modified affirmed, with costs to all parties payable out Of- the'estate. Settle order oh notice.