The surrogate has ordered the administrator of the estate of Abraham G-. Thompson, deceased, to pay to Edward P. Cowles the amount of a judgment recovered by *253him in the supreme court against the said administrator, after a trial at law on the merits, for services rendered by him as proctor and counsel for Henry Sheldon, the former executor of the said estate, in the administration thereof, amounting to two thousand dollars.
This recovery adjudges that the services in question constitute actual, necessary, just and reasonable expenses of the administration which must be borne by the estate.
It is provided by the revised statutes, part 2, chap. 6, title 3, article 3, section 58, (3 R. S. 179, § 64, 5th ed.) that such expenses shall be allowed on the settlement of the account of an executor or administrator. The administrator or executor is to be allowed in his account for his services and expenses, before all other claims.
Title 5, § 19, of the same chapter, authorizes a creditor having a judgment against an executor or administrator, after a trial at law upon the merits, to obtain from the surrogate an order against such executor or administrator to show cause why an execution should not issue on such judgment. The next section directs the surrogate to issue a citation, requiring the executor or administrator complained of, to appear and account before him; and if, upon such accounting, it shall appear that there are assets in the hands of such executor or administrator, properly applicable, under the provisions of chapiter six, to the payment oí the judgment, the surrogate is further directed to make an order that execution be issued for the amount so applicable. These provisions appear to be distinct and easily comprehended. There is no difference in respect to the authority conferred upon the surrogate under the two sections last referred to, whether the judgment was recovered for a debt of the deceased testator or intestate, or for a debt contracted by the executor or administrator, for actual, necessary, just and reasonable expenses of the administration.
It is insisted by the learned and ingenious counsel for the administrator, that the surrogate is not authorized to direct *254the payment of these expenses out of the estate, and that the estate does not become chargeable therefor in such manner that the assets in his hands are properly applicable to the payment thereof, under the provisions of the sixth chapter of the statutes above referred to, until the expenses have been actually paid by the administrator.
This position is fallacious. It cannot be admitted that an administrator can hold a fund in his hands to which he is lawfully entitled to resort for the payment of the just and necessary expenses of the administration, and refuse at his pleasure so to apply the fund as to set the creditor at defiance.
It may be conceded, a§ the appellants' counsel insist, that the administrator who employs the services of counsel in the necessary defense or collection of his trust is personally liable for the payment thereof; but the estate is also liable, and it is not the piivilege of the administrator to decide whether he shall be made liable in his personal or representative capacity. That election is to be made by the creditor, if the right of election exists, and not by the debtor. In whichever capacity the administrator is required or compelled to pay the just and necessary expenses of his trust, he is entitled to have the amount refunded from the estate and allowed by the surrogate on the settlement of his account.
The learned counsel for the appellant clearly errs in urging that the authority of the surrogate under sections 19 and 20, above mentioned, refers only to judgments recovered for debts incurred by the deceased. The provisions of chapter 6, in which those sections are embraced, relate to and provide for the payment of the services and expenses of the executor or administrator, just as distinctly as for the debts of the deceased, and a judgment for such expenses is clearly within the provisions of the sections last mentioned.
The order of the surrogate should be affirmed with costs.
In my opinion it is the duty of the surrogate to proceed *255farther than he has done by his order, if the creditor shall sc require, and to direct that an execution issue.
[New York General Term, February 1, 1864.Clerke, J. concurred.
Sutherland, J. dissented.
Order affirmed.
Leonard, Sutherland and Clerke, Justices.]