The determination of this appeal requires the application of different principles with-reference to the $400 than those which should properly apply to the' $217.43. With reference to the $400, wé agree with the learned referee that the same is not properly chargeable with a lien in favor of the appellant. He not only had received $100 from her on account of expenses of administration, but he failed to pay the check for $400 which he had given her. It is true that he -rendered some services to her as administratrix after the check was dishonored. After that he prepared her accounts as administratrix, and presented them to the Surrogate’s - Court for settlement. In those accounts lie included the $100 as moneys paid to him for “ services for appointment of administratrix.” He made no claim at that time against her for other services, and asked for no allowance to him for services upon the accounting,, and the testimony shows that he promised to pay her the amount he owed her. Even if the appellant was equitably entitled to be paid more for the services which he- rendered to the petitioner as administratrix than he has received the account prepared by him as her' attorney ■ has put.it beyond her power, after the final settlement, to be reimbursed for any moneys she might now be required to pay to him. His time for the adjustment of any claim he had for services other than those included on the accounting was on the accounting itself, and he should hot now be heard to say he has a lien upon this $400 for any services rendered under the circumstances appearing here; We. conclude, therefore, that the order, so far as it covers that amount and interest thereon, is Correct.
We think,-however, that the referee was in error in reporting that the appellant should be required to pay over to the petitioner the $217.43 and the interest thereon. The $600 above mentioned. .was included in the petitioner’s accounts as administratrix, as having been paid over to James II. Mahar as his share as one of the next of bin. The amount was in fact paid over to the appellant, who was' acting ás his attorney. The latter has expended for his. *423benéfifc all but $217.43 thereof, and claims a lien on that amount for his services to him.
These moneys do not belong to the petitioner, and under the proof she has no trust relations or obligations concerning them and she' cannot recover them in this proceeding as moneys belonging to her for the simple reason that they do not belong to her but do belong to James subject to any lien that his attorney may have upon them, the amount of which cannot be determined in this proceeding.
The order should be modified by deducting the sum of $217.43 and interest from the amount required to be paid. This will leave it so that if the appellant has a valid claim against these moneys as the property of James for services rendered to him it may be enforced; and if, on the other hand, they are not properly chargeable with a lien for such services, James may recover them in a proper preceding for that purpose.
The order should be modified accordingly, and as so modified affirmed, without costs to either party.
All concurred, Kellogg, J., in result.
Order modified by deducting the sum of $217.43 and interest, from the amount required to be paid, and as so modified unanimously affirmed, without costs to either party.