In re the Accounting of Bankers Trust Co.

| N.Y. Sur. Ct. | Sep 29, 1953

George Frankenthaler, S.

In this proceeding for the settlement of the account of the successor trustee and for construction of the will applications for allowances on the construction have been submitted by the attorneys who appeared on behalf of persons interested in the estate. The Surrogate is authorized under section 278 of the Surrogate’s Court Act in a proceeding to construe a will “ in his discretion, [to] allow to an executor, trustee, guardian, or any party to said proceeding, such sum as the surrogate deems reasonable for his counsel fees and other expenses necessarily incurred ”. This court has uniformly allowed on such applications compensation to counsel in amounts intended to represent the value of their services to the estate or fund as a whole. Section 278 was not intended to provide an alternative to section 231-a of the Surrogate’s Court Act which permits the Surrogate to determine the value and fix the fees for services rendered by attorneys to persons interested in the estate, and to charge legacies or distributable shares with the payment of such sums as are allowed. The values placed upon services for which compensation is sought under section 278 are not intended to fix the fees which counsel are entitled to charge to their clients for the services rendered to them as parties to proceedings in which construction of the will is sought. The allowances so made represent the court’s appraisal of the value to the estate of the services performed. Such allowances are without prejudice to the right of counsel to seek from their respective clients such additional compensation as may he proper under the circumstances of each case. (Matter of Havemeyer, N. Y. L. J., Nov. 6,1952, p. 1073, col. 4.) The allowances have been fixed.

Resubmit decree with computations completed.