Opinion
Argued January 23, 1894
Decided January 30, 1894
A.T. Clearwater for appellant.
Martin I. Townsend for respondent.
We adopt the opinion of the General Term upon the main questions involved in this appeal, deeming it unnecessary to repeat the reasons very fully and correctly assigned. That court held that there was a valid gift of the right to the fund realized upon the life policy by force of the delivery of the assignment or deed of gift: that it could not be revoked, but vested in the donees subject to the life interest of the widow: that the cause of action matured at her death, and so was not barred by the Statute of Limitations; and that the action, if not necessary, was at least proper and not prematurely brought. We concur in those conclusions which settle in favor of the plaintiffs the substantial points of the controversy.
But there is a minor question relating to the award of costs against the administratrix which, we think, was wrongly decided. Such costs were awarded without any certificate or finding of the trial judge showing the facts upon which the award was founded. The Code (§ 1835) forbids the allowance of costs in an action brought against an executor or administrator in his representative capacity except as prescribed in the next section. That permits such an award where it appears that the claim was duly presented, that its payment was unreasonably resisted or rejected, or that there was a refusal to refer. Since these facts in whole or in part depend upon circumstances outside of the litigation and not within its issues, the section further provides that the facts must be certified by the judge or referee before whom the trial was had. Such a certificate is, therefore, the necessary basis of the award, and without it the facts cannot fully appear. The evidence on the trial and its result may be taken into account, but cannot serve without the prescribed certificate. That was asserted as the correct rule of practice in Wray v. Halliday (3 Month. L. Bul. 98), and we concur in the opinion. The obvious purposes of the two sections of the Code referred to can only be fully accomplished in that way.
The judgment rendered by the trial court should, therefore, be modified by striking out the award of costs in the trial court, and as modified should be affirmed, with costs to the plaintiffs in this court. The costs awarded on appeal to the General Term we do not disturb.
All concur.
Judgment accordingly.