Lead Opinion

Dye, J.

The individual petitioners, except Cornelius F. Gustav, are all presently citizens of and reside in Hungary and are distributees of the estate of Emil F. Geiger, deceased. Their distributive shares aggregating $29,166.70 are being withheld by the Surrogate, pursuant to section 269 of the Surrogate’s Court Act, for reasons stated in Matter of Herz (7 Misc 2d 217). The petitioner Gustav was formerly a member of - the Bar of Hungary and is now a member of the New York Bar, domiciled in New York City.

This proceeding was brought by the petitioner Gustav individually and as attorney in fact for the aforesaid beneficiary petitioners for an order to compel the executors of the Geiger estate to pay him, as assignee, the sum of $7,291.65, being 25% of the foreign beneficiaries’ share of the estate given “ in consideration of legal services rendered by said attorney to them ” and to pay to said Gustav, as attorney in fact, the sum of $250 monthly for the account of each of the foreign beneficiaries to the extent of their respective shares in the estate. The attorney in fact proposes to transfer the beneficial use of such funds to the respective beneficiaries by the purchase of so-called “ Ikka ” packages, which are an approved method for sending food and clothing in the nature of relief to persons residing in Hungary. We all agree that the petition, insofar as it concerned the payments of a distributive share to the petitioner distributees, was properly denied. The sole remaining issue is whether the assignment of 25% of the fund for legal services was also properly denied.

The purpose of section 269 as amended is to authorize the deposit of moneys or property in the Surrogate’s Court in cases where transmission or payment to a beneficiary, legatee or other person resident in a foreign country might be circumvented by confiscation in Avhole or in part, and to authorize the impounding of the fund by the Surrogate to await the time when payment can be made to the beneficiary for his own benefit, use and control (cf. Bill or Revision Notes, 13B Gilbert-Bliss,Surrogate’s Ct. Act, § 269).

*112The record before us does not demonstrate, nor have appellants shown, any circumstances to change the situation as it existed at the time of the Nassau County Surrogate’s determination in Matter of Hers (supra). On its face, the assignment is of the distributees’ share in said estate and, in light of •.the statute, relates to money which is not now within the distributees ’ beneficial use or control. This is not an application 11 ‘ for and to fix and determine the compensation of an attorney for services rendered to an estate * * * legatee, distributee or any person interested therein” (Surrogate’s Ct. Act, § 231-a), nor is any showing made or attempted to be made as to whether 25% of the aggregate shares of these beneficiaries is a reasonable fee for services rendered. The petition, as we read it, is to enforce recognition of an assignment made in Hungary pertaining to moneys which are not now in the possession or control of the assignors but, in fact, are under the control of the Surrogate. So long as the distributive shares are properly being withheld by the Surrogate because of the special circumstances in which the beneficiaries find themselves as domieiliaries in an iron-curtain country, they are in no position presently to assign any part of the funds withheld. They may not place an assignee in a better position than they themselves enjoy as principals. This is not to say, however, that an attorney may not in a proper proceeding and upon a proper showing request a fixation of reasonable fees for services rendered, chargeable against the fund (Surrogate’s Ct. Act, § 231-b).

The order appealed from should be affirmed, with costs to the respondents payable out of the estate.

Dissenting Opinion

Fboessel, J.

(dissenting). In this Surrogate’s Court proceeding, petitioners seek (1) payment of legal fees under an assignment from the nonresident beneficiaries in an estate, and (2) part payments to said nonresident beneficiaries in the form of food and clothing packages. These beneficiaries are entitled to the sum of nearly $30,000 from this estate.

As to the attorney’s fees, I agree with the dissenting Justices in the Appellate Division. Appellant Gfustav appears to have rendered substantial legal services to the estate, including services in connection with a lawsuit involving $250,000 to set aside *113a trust established by the deceased and which was successfully terminated by settlement. He left Hungary as a respected member of the Hungarian Bar in Budapest over 20 years ago, and has never returned. He served in the United States Army, from which he obtained an honorable discharge, became an American citizen, is now an attorney at law duly licensed to practice by the State of New York and is a member of the Federal Bar. So far as appears, he has no contact with the present Hungarian Government. He has performed his services, and if found reasonable is entitled to payment.

As to the payments due nonresident beneficiaries, the Surrogate, under section 269 of the Surrogate’s Court Act, is authorized to withhold payments where it shall appear that a legatee or distributee ‘ ‘ would not have the benefit or use or control of the money or other property due him, or where other special circumstances make it appear desirable that such payment should be withheld ”. This is an application for permission to withdraw installments of moneys for the purpose of sending food and clothing packages to the beneficiaries from time to time.

The Surrogate held no hearing on the application, but simply determined, on the basis of his former decision in Matter of Herz (7 Misc 2d 217), that the court “ does not believe it likely that the beneficiaries would have the' use or control of the property constituting the subject matter of the application” and that ‘ ‘ courts do not favor purported assignments of funds payable to iron-enrtain country nationals and have labeled them attempts to circumvent section 269 of the Surrogate’s Court Act”. This is not such an application. Had the Surrogate held a hearing, it might well have been developed, as alleged in the petition, that the beneficiaries are “ all of advanced age, who are [now] living [in Hungary] under difficult conditions and are in great need of assistance ’ ’, and that monetary assistance 1 ‘ can be transferred to them by sending food and clothing packages to each of them * * * free of duty and of any taxation ’ ’. It might well have been further developed that these nationals have no way of leaving Hungary; that they are the very victims of the “ events in Hungary ” to which the Surrogate referred; that they will probably die there and never receive the benefit of their legacies if the moneys are withheld; *114and that there are agencies which can assure delivery of food and clothing packages in reasonable amounts to named individuals.

It seems to me that the Surrogate abused his discretion in failing to grant a hearing so that these facts might have been developed and the matter decided, not on the basis of an application to pay legacies to iron-curtain country nationals, but on the application as made, namely, to allow reasonable sums of money for conversion into food and clothing packages upon a proper showing that they would reach the beneficiaries.

I vote for reversal and for a remission to the Surrogate of Nassau County for further proceedings not inconsistent with this opinion.

Chief Judge Conway and Judges Desmond, Van Voorhis and Burke concur with Judge Dye; Judge Froessel dissents in an opinion in which Judge Ftjld concurs.

Order affirmed.