Upon the evidence submitted with the referee’s report, the contestants’ exception to the allowance of the amount paid by the administratrix for services of counsel must be in part sustained. I held, in the matter of St. John’s estate (ante, 236,) that the accounting party was bound to satisfy the Surrogate of the necessity and reasonableness of any claim made by him to be reimbursed for sums expended as counsel fees. In the present case, the . administratrix has not established to my satisfaction that the full sum for which she seeks to be credited was necessarily paid out. The legal services, which seem to have been rendered at her instance in behalf of this estate, relate mainly to the successful resistance of a certain claim made by a physician, and to matters attendant upon the -issuance of letters of administration. The rendition of these services, and of such others as are described by the testimony, the administratrix was justly entitled to secure, and for such reasonable sum as she expended in that behalf she should now be credited. But I do not feel warranted, upon the evidence as it now stands, in allowing her more than $150.
Her claim to be reimbursed for payments to Dr. Field must be altogether disallowed, so far as it relates to medical services rendered by him more than six years anterior to the decedent’s death (Adams v. Fort Plain Bank, 36 N. Y., 255; Burnett v. Noble, 5 Redf., 69; McLaren v. McMartin, 36 N. Y., 88).
There was no running or mutual account between the decedent and Dr. Field, such as would serve to prevent the operation of the statute of limitations in their dealings (Green v. Disbrow, 79 N. Y., 1).
Subject to like conditions, the administratrix should ■be granted reasonable allowance for the support and maintenance of the children, and she should be given such' allowance unconditionally, so far as regards her stepson, whom she has been under no legal obligations to support.
. It seems that, during the months of July, September and October, except for certain intervals from Friday to Monday, the infant was not actually living with the administratrix. For this cause a deduction of forty dollars should be made from the amount allowed by the referee.
As to thbse infants who are the children of the ad
If the circumstances are such that, upon her application in advance to be allowed for maintenance, the court would have granted a certain sum by way of such allowance, there is no sufficient reason, I think, why she should not now be credited with a like sum (Voessing v. Voessing, supra: Evertson v. Tappen, 5 Johns. Ch., 497).
The report may go back to the referee, for enabling the administratrix to present such proof as she may see fit to present, respecting her condition in life since the death of her husband, and respecting, also, the character of such of the medical services in question as were rendered within six years prior to the decedent’s death. She may also give further evidence, if she desires, in the matter of her claim to be reimbursed for services of counsel.