In re Stevenson's Estate

150 N.Y.S. 423 | N.Y. Sur. Ct. | 1914

FOWLER, S.

In this case the objections were withdrawn and there was no contest. Nothing is coming presently to the infants represented by the special guardian, and if anything is allowed to the guardian it must be paid by others than the infants and out of their own property.

[1] This application is justified by the new section 2748, Code of Civil Procedure. I have grave doubts if that section is a valid justification for the application. The act (chapter 443, Raws of 1914) did not, I think, take into consideration that the Surrogates’ Courts are not courts of equity in possession of the res. The Surrogates’ Courts are not in possession of the estates on which they grant letters testamentary or of administration. The jurisdiction of courts of equity to grant costs out of the res in court was only allowed after a long and historic struggle, and then on that ground only.

[2] Decrees of Surrogates’ Courts operate almost exclusively in personam, and not on the res. Whether the Legislature had the power to authorize surrogates to grant allowances out of other people’s property is open to much argument and to grave doubt; and I prefer not to act on a doubtful authority until the higher tribunals of the state have passed on the point and held that I have the authority. Then some universal standard as to the amount of the allowance will have tobe reached, as surrogates cannot refer it to a master or referee to report a suitable amount, as can a court of equity. Allowances out of other people’s property at the will of the surrogate would, I fear in my case, be open ■to criticism, and I will not at present allow them for the reasons stated. Besides, the new act contains no repealing clause, and section 2561 of chapter 18 of the old Code is not inconsistent with section 2748 of the present law. By the said section 2748 as construed the surrogate would be authorized to allow $70 to the special guardian in this instance and no more.

The decree will provide for $70 in this instance. Costs taxed and compensation to special guardian fixed. Insert amounts for distribution in decree.