In re the Estate of Lane

147 Misc. 138 | N.Y. Sur. Ct. | 1933

Hetherington, S.

It became necessary herein to appoint a temporary administrator and it was the duty of such temporary administrator not only to conserve any assets available but to seek recovery of such other assets as appeared to belong to the estate regardless of to whom they might ultimately go. This she did and had recourse to numerous discovery proceedings wherein in all save one the petitioner was her counsel. Prior to her appointment the temporary administratrix and her mother, respectively daughter and widow of decedent, had retained petitioner on a contingency basis, to contest a will which disinherited them in favor of a stranger who had no claims, legal or moral, on him. He was subsequently dismissed and another attorney substituted and now seeks compensation for such services as he rendered and urges that the compensation be measured by the contingency agreement. This cannot be, particularly as it would not bind the representative. The services rendered by him were necessarily rendered on behalf of the estate in so far as the discovery proceedings are concerned; they were intricate and arduous and he met strenuous opposition; the estate profited, though perhaps not the beneficiary under the will, which cannot be considered; she profits by legal technicalities rather than by moral justice. I conclude and allow the sum of $4,000 to the petitioner in addition to such fees as he has already received on account, as the reasonable value of the services rendered, such sum to be paid out of the estate.

Concerning his services in the matter of contesting the probate of the will, that being a matter undertaken on behalf of the widow and daughter as such individually and of course not in any representative ' capacity, they must bear the expense thereof, being unsuccessful, and I will entertain an application to fix counsel’s compensation therefor separate and apart from this application.

Submit order on notice accordingly.