FOURTH DEPARTMENT, JULY TERM, 1895. [Vol. 88. administratrix, demanded possession of all the property mentioned in the complaint, and the defendant refused to deliver the same, and, therefore, the plaintiff seeks to recover damages for the conversion of the same. The answer admits the death and the appointment and qualification of the plaintiff as administratrix. The jury rendered a verdict for the plaintiff of $240. 0. M. Reilly, for the appellant. Piper & Rice, for the respondent. HARDIN, P. J.: In March, 1893, William Dutcher died, leaving him surviving his widow and five children, and on the 8th day of February, 1894, Betsey Dutcher, his widow, was appointed his administratrix and took upon herself the duties of such. After having made a demand of the personal property in the possession of the defendant at the time such demand and such refusal thereof were made, and which are particularly described in the complaint, she brought this action for conversion of the same. In the third paragraph of defendant's answer it is alleged that on the 6th of March, 1893, the plaintiff and defendant, "together with Wm. H. Dutcher and Washington N. Dutcher, who are brothers of this defendant, and sons of the said Wm. Dutcher, deceased, made and entered into an agreement, by the terms of which the plaintiff herein was to come and live with this defendant and to make her home with him, as she should live, and that defendant should support, maintain and provide for said plaintiff at his said home and should pay all expenses and debts of said deceased, including funeral expenses of his said father, and in consideration of said agreement so made and entered into between the said plaintiff, Wm. H. Dutcher, Washington N. Dutcher and this defendant, all of the personal property and effects of the said Wm. Dutcher, deceased, were to be delivered over to this defendant, and were to be his absolutely." The answer also alleges that pursuant to the agreement the property described in the answer was delivered to the defendant. The answer further alleges that the plaintiff, Wm. H. Dutcher and Washington N. Dutcher were, at the time of the contract " the only heirs at law and next of kin of the said Wm. Dutcher, Hun.] FOURTH DEPARTMENT, JULY TERM, 1895. deceased, and the only creditors and persons interested in said estate." It is also alleged that the plaintiff, pursuant to the arrangement, on or about the 8th of March, 1893, went to live with the defendant at his home and was supported and provided for by him from the 8th of March, 1893, up to the 30th of December, 1893, when the plaintiff herein, of her own account and without any fault on the part of this defendant, left his said home and has not since been there. During the trial it appeared that the deceased left three sons and two daughters, in all five children. That at the time of the alleged agreement the sisters were not present. There was no averment in the answer that the sisters took part in the agreement, nor was it alleged that they ratified the agreement; however, upon the trial, it was claimed that after the agreement was made the two sisters ratified the same. It is to be observed that the defendant in his offer stated in effect that at the time the agreement was entered into between the three persons and the widow, the sisters did not take part therein, as it is alleged that they subsequently ratified the agreement. In the offer the defendant claimed to show that all the personal estate which was left by William Dutcher should be taken by the defendant, and that in consideration of that he should maintain and support the plaintiff at his home during the term of her natural life, and that he should also pay the funeral expenses and whatever expenses there were or debts against the estate; and that he was to have all of the property for supporting the plaintiff during her natural life and paying the funeral expenses and debts, and that the agreement was by parol. The evidence was objected to on sundry grounds, among others that it was immaterial and incompetent and inadmissible under the pleadings. The offer was rejected and the evidence mentioned therein excluded, and the defendant took an exception. At the time of the alleged agreement the plaintiff was not administratrix of the estate. It is claimed, however, in behalf of the defendant that, as she was subsequently appointed, the agreement which she made before her appointment was binding upon her as administratrix. We think the offer was not in accordance with the allegations of the answer. FOURTH DEPARTMENT, JULY TERM, 1895. [Vol. 88. In Smith v. Robinson (30 Hun, 273), after discussing the rule which is to the effect that letters of administration when granted have relation to the time of the death of the intestate and legalize all the intermediate acts of the administrators, it was said by BARKER, J., at page 273, that the administrator "is not permitted to question the validity of his own agreements and contracts, which he may have entered into in good faith prior to his appointment, concerning the property and debts of the intestate." And he adds : "Without the protection of this rule of law, great wrong and injustice would at times be done to innocent persons trading and dealing with an individual in the actual possession of the assets belonging to the estate of the deceased person." In the case in hand the defendant was aware of the facts and circumstances relating to his father's estate, and must be presumed to have known that the widow had no legal right to bind the heirs at law who were not present at the time of the alleged agreement, and presumptively he knew that the widow, before having been appointed administratrix, had no legal title to the property. It is difficult, therefore, to say, upon the evidence disclosed at the trial or upon the circumstances in addition thereto embraced in the offer, that the defendant was acting in good faith, or that the widow had the full right to sell or transfer the property left by his deceased father. The legal title to the property came into the possession of the plaintiff and she received letters of administration, and when she made a demand for the possession of the property she was acting in behalf of all the heirs at law as well as herself. Inasmuch as the defendant had not acquired, in good faith, the legal title to the property, he wrongfully refused to deliver possession of the same when a demand was properly made by the representative of his father's estate, to whom the legal title passed upon the appointment of the widow as administratrix. The case in hand differs from Allen v. Eighmie (9 Hun, 201), as in that case the defendant was the only next of kin of the decedent and plaintiff was his widow, and the agreement entered into between them was such an one as contemplated a payment by the defendant of all the debts and demands against the estate, and the court, therefore, held that the agreement made before the plaintiff's appointment was binding and was properly pleaded in the answer to the complaint, which sought to recover moneys that had come to the hands Hun.] FOURTH DEPARTMENT, JULY TERM, 1895. of the defendant. In the case in hand the sale of the property does not seem to have been made in terms, but it was rather a personal agreement attempted to be entered into by the widow with one of the sons of the deceased, looking to her own personal advantage rather than to the adjustment of the estate in the usual formal mode. In Bellinger v. Ford (21 Barb. 314), after stating that the general rule that letters testamentary when issued relate back to the death of the testator and legalize all intermediate acts, BOCKES, J., said: "But this must be understood to cover those acts only which might have been done had he been executor at the time, and since the Revised Statutes the law of relation is limited still more in its application." In Deobold v. Oppermann (111 N. Y. 539) RUGER, Ch. J., said: "We conceive it to be beyond the power of an executor or administrator to bind the estate they represent to any use of its funds, by contract with third persons having knowledge of the character of the property transferred, except in the ordinary and usual course of administration of the trust, and in furtherance of its objects. * * It would be contrary to the policy of the law to allow an administrator, at the outset of his administration, by contract, to place the funds of the estate beyond the reach of the court and irreclaimable until after all the duties of administration have been performed by the administrator." It is apparent from the proofs given and from the proposed offer, that the plaintiff, administratrix, was not "the only person entitled to the beneficial ownership of the intestate's property," and she did not hold the estate exclusively in her own right. The case, therefore, does not fall within the rule mentioned in Blood v. Kane (130 N. Y. 514). (See, also, Matter of Mullon, 145 id. 104; 39 N. E. Rep. 822.) We think the exceptions taken at the trial to the rulings of the court in respect to the offer do not present errors requiring us to disturb the verdict. It is suggested in behalf of the appellant that the property in question belonged to the widow under the statute of 1842, and that she had a perfect right to do with it as she saw fit, and that the same was exempt from the creditors of her husband. We do not find that question was raised at the trial. We, therefore, HUN-VOL. LXXXVIII. 29 FOURTH DEPARTMENT, JULY TERM, 1895. [Vol. 88. find no occasion to express an opinion upon that view of the case. The foregoing views lead to the conclusion that the order denying the motion for a new trial and the judgment should be sustained. MARTIN and MERWIN, JJ., concurred. Judgment and order affirmed, with costs. 88 226 Зар 28 JOHN SCHULTE, Appellant, v. LESTERSHIRE BOOT AND SHOE COMPANY and Others, Respondents. Mechanic's lien — costs subsequent to an offer of judgment — interest, after offer, not considered sections 14 and 19 of chapter 342 of 1885. Where the defendant in an action has offered to allow judgment to be taken against him for a specified amount, the plaintiff is not entitled to add the accumulated interest from the time that the offer might have been accepted to the time of the recovery, for the purpose of claiming that the recovery is more favorable than the offer. The general rule laid down in section 14 of chapter 342 of the Laws of 1885 must be construed and applied in harmony with the rule which is prescribed in section 19 thereof. Where the plaintiff in an action brought to foreclose a mechanic's lien does not recover a judgment more favorable than one that was offered him by the owner of the premises, he is not entitled to recover costs subsequent to the time when he might have accepted the offer, but, on the contrary, he must pay any costs in the action incurred by the owner subsequent to the time of the offer. Such an action was referred to a referee, and the referee ordered judgment in favor of the plaintiff for the amount, for which the owner offered to allow the plaintiff to take judgment, "with the costs of this action." Held, that it must be assumed that the referee intended that the plaintiff should recover only such costs as he was entitled to under the statute. APPEAL by the plaintiff, John Schulte, from that portion of an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 7th day of March, 1895, which directs the clerk of Broome county upon the retaxation of costs to disallow and deduct from the plaintiff's bill of costs all his costs and disbursements incurred after a specified date, and which further directs the clerk to tax against the |