In Re the Estate of Aaron
The orders appealed from should be modified to the extent of remitting the proceedings to the Appellate Division to reconsider whether predecision interest should be added to the amount of attorneys ’ fees awarded, and the orders otherwise affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estates.
The court does not review whether the value for services rendered should be greater or less than the amount assessed by the courts below (Cohen and Karger, Powers of the New York Court of Appeals, pp. 588-590). There was no basis, however, for the Appellate Division to hold that the Surrogate was without power, as a matter of law, to award predecision interest. The fixing of attorneys’ fees resting in the court’s discretion, the method of computation likewise rested in discretion. The court could consider delay in receipt of the payment of fees
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in determining the reasonable fees or it could fix the fees and compensate for delay by computing interest on the fees found to be appropriate. The Appellate Division had a similar power. The cases do not articulate any sharp distinction in fixing predecision interest in decedents’ estates. The cases allowing interest, it is true, usually involved prior discharge of the lawyer or claims against distributees for services rendered to them in the estate, but in principle this does not provide any distinguishing basis so long as the claims are unliquidated and depend on the fixation of reasonable fees by the Surrogate (see
Matter of Mandel,
20 A D 2d 719;
Matter of Noble,
1 A D 2d 900, app. dsmd. 2 N Y 2d 725;
Matter of Montgomery,
Chief Judge Fuld and Judges Bergan, Breitel, Jasen and Gibson concur in memorandum; Judges Burke and Scilepm dissent and vote to affirm.
Ordered accordingly.