THIRD DEPARTMENT, NOVEMBER TERM, 1892. MAYHAM, P. J.: Appeal from a judgment entered in favor of the plaintiff upon the report of a referee, on a disputed claim presented to the defendant, as administratrix of her deceased husband, Thomas J. Strong, and referred, under the statute, with the approval of the surrogate of Washington county. The main contention in this case was whether the intestate received this money, in controversy, in trust for the use of plaintiff, or in some other capacity. The capacity in which such money was received by him is the vital question in this case. Any essential error in the receipt of evidence on this point cannot be overlooked on this appeal. Viewed in this light, I think the question put to the witness, Annie Vaughn, and the answer to the same, and the refusal of the referee to strike the same out, on motion of defendant's counsel, was error for which this judgment should be reversed. The question allowed, if it did not call for the conclusion of the witness, still the answer was but her conclusion upon the main question to be found by the referee in the case as to whether or not intestate received this money in trust. The answer of the witness was: "My brother was to take it in trust in preference to Mr. Swift. Mr. Swift thought he was capable, as he did a good deal of business, of investing this money to a better advantage, and my brother said he thought he was capable of holding this money in trust for these three children, and then he said about the division between the children." The defendant moved to strike out so much of this answer to the question as does not give the conversation. This motion was denied, and the defendant duly excepted. This answer was given under the objection that the witness should only state the conversation. To another question put by the plaintiff's counsel as to what was said about Strong (intestate) holding the money, which was also objected to, the witness answered: "He was proposed to take it in trust for these children for them." This answer the defendant moved to strike out as not being a part of the conversation, and as & conclusion or deduction of the witness, which motion was not granted. THIRD DEPARTMENT, NOVEMBER TERM, 1892. We think that these answers substituted the conclusion of the witness, who manifestly has a strong bias for her children, who were plaintiffs, for that of the court, and allowed her to make her own deductions from the conversation instead of giving the conversation, and leaving the court to draw the proper conclusion from it. It was for the witness to give the language used in the conversation, and for the court to pass upon its effect. This rule is elementary and is supported by a uniform current of authorities. This rule is well stated in Rice on Evidence (p. 32€) and in Teerpenning v. Corn Exchange Insurance Company (43 N.Y., 279). ALLEN, J., says: "As a rule, witnesses must state facts, and not draw conclusions or give opinions. It is the duty of the jury or the court to draw conclusions from the evidence and form opinions upon the facts proved." It is true that this rule does not apply in the case of expert testimony. But in such cases the expert testimony is received in the nature of facts from the necessity of the case. But in the case last cited it is held that the rule above stated should not be extended or enlarged. This is not a case where the appellate court can see that the illegal evidence did not harm the defendant or affect the result. It is unnecessary, therefore, to examine the evidence further, or pass upon the weight of evidence offered by the respective parties for the purpose of determining the merits of the controversy. The judgment should be reversed, the referee discharged, and a new trial ordered, costs to abide the event. PUTNAM and HERRICK, JJ., concurred. Judgment reversed, referee discharged, new trial ordered, costs to abide event. THIRD DEPARTMENT, NOVEMBER TERM, 1892. 66 278 83 406 NANNIE L. VAUGHN, RESPONDENT, v. MARY M. STRONG, APPELLANT. THOMAS S. VAUGHN, RESPONDENT, v. MARY M. STRONG, Costs on a reference, under the statute, relating to disputed claim against a decedent's estate. An administrator will not be charged with costs for resisting a claim referred, under the statute (2 R. S., chap. 6, tit. 3, art. 2, § 36), where he has acted with reason and good faith, although the claim be finally allowed. A reference, under the statute, of a disputed claim against a decedent's estate, is a The same rule should govern the granting of costs on a reference, under the statute, APPEALS by the defendant Mary M. Strong, as administratrix of Thomas J. Strong, deceased, from orders, made at a Special Term of the Supreme Court, held in and for the county of Washington, allowing costs against her, as administratrix, on disputed claims against her intestate's estate, which had been referred under the statute (2 R. S., chap. 6, tit. 3, art. 2, § 36), and for which judgments had been entered against her. T. A. Lillie, for the appellant. W. Farrington, for the respondents. This is an appeal from an order of a Special Term of this court, allowing costs against the defendant, as administratrix, in each of the above special proceedings. The proceedings arose out of claims THIRD DEPARTMENT, NOVEMBER TERM, 1892. presented by the plaintiff to the administratrix against the estate of the intestate, which were rejected by the administratrix and referred under the statute. On the first trial before the referee the report was in favor of the defendant, and, from the judgment entered thereon, an appeal was taken and the judgment reversed on the ground of error committed by the referee in the admission of evidence on the trial. On the second trial a like result was reached by the referee in favor of the defendant, and the judgment entered thereon was again reversed on the ground of the receipt of illegal evidence. On the third trial the report was in favor of the plaintiff, and on this trial the referee certifies that the claims were unreasonably resisted, and, on a motion for costs at Special Term, an order was made allowing costs in each of these cases. Upon the affidavits used at the Special Term on this motion, and the papers and proceedings on which this motion was made, we cannot agree, either with the referee or the learned judge at Special Term, that these claims were unreasonably resisted. The uncontradicted affidavit of the administratrix shows that she found, among the papers of the deceased, papers and documents, in his own handwriting, from which she had a right to assume that the fund in dispute in these proceedings had been properly disbursed by him in his lifetime, and that none of the money received by him remained in his hands or estate at the time of his death. Add to this the fact that, on two successive trials, two intelligent referees had found that the estate represented by the administratrix was not liable for these funds, and it is difficult to see how it can be said that the administratrix had unreasonably resisted the payment of this claim. The law seems well settled that an administratrix will not be charged with costs for resisting the allowance of a claim referred under the statute where such administrator has acted with reasonable and good faith in resisting the claim, although it be finally allowed. In Johnson v. Myers, Executor, etc. (103 N. Y., 666), which arose on a disputed claim, the court, in discussing the question of costs against the executor, say: "We discover no trace of bad faith in the defense interposed, but much to justify the inquiry and examination which it compelled. For this reason we think costs should THIRD DEPARTMENT, NOVEMBER TERM, 1892. not have been awarded, and we, therefore, reverse the order appealed from." And this seems to have been the rule under the revised statutes, and has not been changed by the Code. (Nicholson v. Showerman, 6 Wend., 554; Pursell v. Fry, 19 Hun, 595; Bailey v. Schmidt, 19 N. Y. St. Rep., 50; Fredenburg v. Biddlecome, 17 Week. Dig., 25; see, also, Redfield's Surrogates Pr., 529, 530.) Applying this rule to the case at bar, we do not see how costs, as such, can be charged against the defendant in these proceedings. But the learned judge, in the order allowing costs, directs that they shall be allowed the same as though it was an action in the Supreme Court from the commencement. In this, we think, the learned judge erred. (Hallock v. Bacon, 45 N. Y. St. Rep., 489.) The reference in this case was a special proceeding, and not an action, and we do not see upon what principle the costs, as in ordinary actions, could be allowed, if at all. The judgment in which the costs in this order were inserted has been reversed at this term. The order should be reversed, with ten dollars costs and printing disbursements. HERRICK, J., concurred. PUTNAM, J.: The payment of plaintiff's claim was not unreasonably resisted, and, therefore, plaintiff should only recover his disbursements. Perhaps the same rule should govern the granting of costs on a reference under the statute as in an action against executors and administrators, where costs are awarded because payment of a claim has been unreasonably resisted. (Civil Code, §§ 1835, 1836.) Had it appeared, however, that the payment of the claim in suit was unreasonably resisted or neglected, I am not prepared to say that costs could not have been properly allowed under section 3240, Civil Code. It has been suggested that, although a reference under the statute is a special proceeding, section 3240 (supra) does not apply, because, as held in Larkins v. Maxon (103 N. Y., 680; 3 Birdseye Stat., 2614, 2615), section 317 of the Code of Procedure is yet in force, and that section regulates the award of costs on such a reference. By section 3250, Civil Code, it is provided that the title therein as to costs (including § 3240, |