Costs are not recoverable in actions against executors and administrators of course, as in other actions ; but depend upon the existence of certain facts. The statute (2 R. S. 90, § 41,) has made it the duty of this court to decide in what cases executors and administrators shall pay costs to be levied of their property or of the property "of the deceased, “having reference to the facts that appeared on the trial:” and when the cause is tried at the circuit, “ such facts ” are to be certified by the circuit judge before whom the trial shall have been had.
It is now settled that there are but two grounds for awarding costs in such cases; (1) when the claim has been presented and payment has been unreasonably resisted'or neglected; and (2) when there has been a refusal to refer, the claim being disputed. (Bullock v. Bogardus, ante, p. 276.) Neither of these grounds exists in this case. The particular claim upon which the plaintiff has recovered was at no time presented to the defendant for payment, nor was any offer made to refer it, should it even be conceded that the plaintiff or her attorneys were competent to make such offer, which, as she was at the time a minor, is at least doubtful. The claim presented, and in respect to which payment was refused, and which was offered to be referred, was for the $1000 for which the note had been given, or the same amount agreed to be paid by the deceased to the plaintiff by a special agreement between them; the first of which the plaintiff disaffirmed on attaining the age of twenty-one years, shortly before the suit was commenced, and the other the circuit judge decided against the plaintiff on the trial. The plaintiff did not recover upon the note or special agreement, but upon a quantum meruit for work and labor for about nine months, performed *674by her for the deceased, which claim there is no ground to pretend she at any'time, personally or otherwise, presented for payment or offered to refer. To lay a foundation for costs in these cases, the claim presented for payment and which is offered to be referred must be substantially the claim which the plaintiff subsequently recovers. (Knapp v. Curtiss, 6 Hill, 386.)
Motion denied.