It is not important to consider the question whether the trustees under the will of Gilbert "W". Bowne could charge the estate with the claim of plaintiff for professional services rendered the estafe.
As I read the averments of the complaint, they have not done so. The averment is “ that it was understood by said defendants *5John Beveridge and Hermanee B. Duryea, trustees as aforesaid, and this plaintiff, that the said services were rendered and money paid * * * was to be paid for by them as such trustees out of said estate.” This is a precise statement of their legal duty as trustees. The trustees may use the funds of the estate for legal purposes. They cannot bind the estate by any executory contract. (Austin v. Munro, 47 N. Y., 360; Ferrin v. Myrick, 41 N. Y., 315.) There is no cause of action set forth against the defendant King.
She is not a necessary party to an action against the trustees to recover a balance of a claim for services rendered, nor is she individually liable to plaintiff for any portion of the plaintiff’s claim by reason of her receipt of property under the will of the deceased, Gilbert W. Bowne.
In the ease of Noyes v. Blakeman (2 Seld., 567), there were no funds in the hands of the trustees to resist an action which threatened the destruction of the trust estate. In such an exceptional case the Court of Appeals held that the trustees could establish a lien on the trust estate. Here there is no such claim made. The services rendered were in the management of the estate, and it does not appear but that the trustees had always sufficient funds belonging to the estate, with which to pay plaintiff for his services. Indeed, the contrary appears, that the trustees had abundant means in hand down to the time the estate was transferred to the cestui que trust under the will.
I think the order appealed from should be reversed and the demurrer sustained, with leave to plaintiff to amend in twenty days on payment of costs.
Gilbert, J., concurred; DykmaN, J., not sitting.Order overruling demurrer reversed with costs and demurrer sustained with costs.