majority">Harris, Justice.

The 37th section of the statute, relating to the duties of executors, &c., (2 R. S. 89,) authorizes the court, in proceedings like these, to confirm the report of the referees, and to adjudge costs as in actions against executors. By a reference to the 41st section of the same statute, it will be found that costs may be awarded against executors, when the demand upon w'hich the action is founded, has been presented within the time prescribed, and its payment has been unreasonably resisted or neglected. Upon an application for costs, in a case like this, the question, therefore is, whether the demand having been duly presented, its payment has been unreasonably resisted or neglected.

I am aware that there are one or two cases in which the power of the court to award costs in such proceedings has been denied. Van Sickler agt. Graham,, (7 How. 208,) was an application for an extra allowance in a case where administrators, upon a reference under the statute, had been successful. Mr. Justice Barcuxo was of opinion that they could only recover the disbursements for which provision had been made by an interpolation ” in the 317th section óf Code. The same view seems to have been taken by Justice C. L. Allen, in Avery agt. Smith, (9 How. 349,) though apparently without much consideration.

Although it is true, as was said in Van Sickleragt. Graham, that “ the general provisions of the Code regulate costs only in actions, yet when it is declared that upon a reference like this, without action, the court shall have the same power to adjudge costs, that it would have in case an action had been brought against the defendants in their representative capacity, it is enough for the court to see, that had such an action been brought, it might have awarded costs to the successful party. It cannot *510be denied, that in such an action, costs may be allowed in certain cases. These costs, when allowed, are, of course, the costs of an action under the provisions of the Code. Precisely the same costs may be adjudged upon the reference without action as if an action had been brought. The court is, therefore, authorized to award costs under the Code upon such a reference. The provision in the 317th section of the Code, which entitles the successful party to recover his disbursements, cannot, I think, be regarded as affecting the power of the court, in proper cases to award costs, as in an action, to the prevailing party. . This provision was only intended to secure the party his disbursements, in all cases, without regard to the exercise of the discretion vested in the court to grant or withhold costs.

In this case, therefore, the plaintiff is entitled to recover, as matter of legal right, his disbursements. I think, too, the defendant should be charged with costs, to be taxed, as in an action, on the ground that payment of the plaintiff’s demand has been unreasonably resisted. The demand consisted of notes, signed by the decedent. The defence was that they were forgeries. I cannot see that the defendant had any reasonable ground for interposing such a defence. The facts proved upon the trial, repel any such presumption. The plaintiff is entitled to an order confirming the report of the referees, and that he rel cover judgment for the amount reported due, together with his costs, to be taxed as in an action by the clerk of Columbia. I do not think it a proper case for an extra allowance, nor should costs be awarded upon this motion.

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