We have not been able to find any precedent for the order appealed from, and we are clearly of the opinion that it is void for lack of power in the court to make it. This court certainly had no^ power to make an allowance by way of costs of the proceedings in the Surrogate’s Court. After the appeal this court acquired jurisdiction to make an extra allowance of costs only after judgment. Assuming that it was the duty of the executors to resist the appeal from the surrogate’s decree, they were bound to defray the expenses incident to the proceedings, and to rely for reimbursement upon the settlement of their accounts as executors. Upon such settlement the' beneficiaries under the will are entitled to be heard. If the executors cannot administer thq trust devolved upon them, either because they have not means sufficient to defray the expenses thereof, or for any other cause, they should renounce the office. Neither the surrogate nor this court has power to make an appropriation from the property left by the deceased in anticipation of the expenses of administering the same. Such property belongs to the beneficiaries under his-will, and they cannot be deprived of any part of it, except by due process of law. The disposition of such property belongs to the. executors, under their official liability. ' For such disposition they are liable to account. The law has provided the manner of such *47accounting. It must-be done after, and not before, they have expended’ moneys, and after the beneficiaries have been duly cited to attend upon the settlement of their accounts. The effect of the order appealed from, if sustained, would be to reverse this order of proceeding, and to give legal sanction to items of expenditure by" the executors without affording their cestuis que trust an opportunity to be heard respecting the same. That cannot be lawfully done.
The order must be reversed, with $10 costs and disbursements,, and restitution should be awarded.
Present — Barnard, P. J., G-ilbert and Dykman, JJ.Ordered accordingly,