The decree settling the accounts of Thomas F. Maxwell, as committee of the person and estate of John K. Cullin, an incompetent, now deceased, after passing upon the account as stated, provided that the “said Frederick E. Bowen is allowed the sum of $1,000 for his costs in this proceeding.” Mr. Bowen was the attorney of the petitioner, the accounting committee, hut it did not appear from the account of said committee that he had paid to the said Frederick E. Bowen the sum of $1,000 for any services rendered in behalf of the estate, the court merely assuming to make the allowance “ for his costs in this proceeding.” Subsequently the learned county judge, on motion, amended the decree by striking out the words “That the said Frederick E. Bowen is allowed the sum of $1,000 for his costs in this proceeding ” and inserting in the place thereof “ That the said Thomas F. Maxwell is allowed the sum of $1,000 for his counsel fees and costs in this proceeding. ” The only effect of this amendment is to provide for the payment of $1,000 to the committee instead of to the attorney, and, of course, is of no practical importance to any one.
Herbert M. Cogswell, the sole next of kin, etc., of John K. Cullin, the deceased incompetent, served a notice of appeal on the 26th day of May, 1915, from the original decree, complaining of the allowance of $1,000 to Mr. Bowen as counsel fee, and while this appeal was pending the court made the amendment above detailed. Thereupon Mr. Cogswell filed a second notice of appeal from the order amending the decree, and the exec*142utors of the last will and testament of the said incompetent likewise served a notice of appeal from this amending order, but without appealing from the original decree as thus amended. For all practical purposes, therefore, Mr. Cogswell, as sole next of kin, is the only person appealing and it is suggested on the part of .the respondent that Mr. Cogswell has no right to raise the question by appeal, it being contended that the executors of the estate are the only proper persons to raise this question.
We are left entirely in the dark as to the real relations of the executors to the estate, but it appears from the decree appealed from that Mr. Cogswell, as sole next of kin, etc., appeared in the proceeding for the judicial settlement of the accounts of the committee of the incompetent, and we think it is now too late to suggest that he is not a party aggrieved by the decree appealed from, which disposes of $1,000 of the property of the incompetent. While it does not appear that Mr. Cogswell takes anything under the will of the decedent, it seems to have been assumed that he had an interest in the estate, for he appears without objection so. far as we can discover, and the liberal policy of the law, as manifested by section 1296 of the Code of Civil Procedure, would seem to indicate that he has a right, as a party to the original proceeding, to raise the question here presented.
We think there is no doubt that a person holding property in a fiduciary relation has a right to expend such sums as may be reasonably necessary in reducing the property to possession and in preserving the same, and in making a final accounting; this proposition is supported by many authorities. But we think the law is also well established that such expenditures should be made upon the judgment of the person so holding the property, in the orderly administration of the trust, subject to the approval of the court upon the judicial settlement of the account. In other words, the trustee should employ such assistance by way of counsel or otherwise as is reasonably necessary, and should include the charges for such services in his account, like any other disbursement, so that it may be subject to objection, investigation and judicial determination, rather than the mere caprice of the court. In the present instance the estate is large and the allowance *143may not be unjust; nothing is shown by the record what services were rendered — what were necessary to be rendered — and the rule is well established that costs and allowances are purely a matter of statutory provision, and that where there is no provision for them they cannot be awarded. (Matter of Board of Water Supply, 158 App. Div. 116, 118, and authorities there cited; Matter of School Street, Nos. 1 & 2, 162 id. 158, and authorities there cited.) Interested parties are allowed to have a hearing upon all other matters of administration by a trustee, and we can see no good reason, nor is authority cited to the contrary, why this should not prevail in the matter of allowances of counsel fees as a part of the expenses of administration. There is no doubt of the right of a trustee, who has faithfully discharged his duties, to be reimbursed out of the estate for his legitimate expenditures, but this should not depend upon the discretion of the court, but upon the judgment of the trustee, subject to the same review by the court that follows any other disbursement of the funds of the estate. I have purposely refrained from elaborate citation of authorities upon this subject, because it is one involved in great confusion, but, after an examination of the case, I am persuaded that the rule above set forth is the true one, and that it does not run counter to any determination which is controlling* here.
The order amending the decree should be reversed, and the original decree should be modified by striking out the provision for the allowance made to the attorney for the respondent, with costs to the appellants, and as so modified, affirmed.
Order and decree affirmed, with ten dollars costs and disbursements.