146 Misc. 555 | N.Y. Sur. Ct. | 1933
After seven days of trial before a jury, the contestant succeeded in regaining her quarter or equal share in the $35,000
Contestant’s costs were taxed under section 278 of the Surrogate’s Court Act on a basis of sixty days, at $1,995. Her counsel now moves, under section 231-a of the Surrogate’s Court Act, to have all now known parties in interest show cause why he should not also have, in addition to his client’s taxed costs, an extra allowance of $1,500 out of the estate, as costs. Proponents, on a like time basis, taxed costs at $1,706; and their counsel now moves for an extra allowance also, presumably for as much as his opponent is asking; and the special guardian submits a bill, of costs of $770. These demands make a possible total of $7,770 to be paid out of this estate as costs. The proponents, owning three-quarters of the estate, at this stage of the litigation, object only to the extra allowance asked for by the opposing counsel. The contestant objects to proponents, or their counsel, getting anything, on either score. Underlying each motion is the question: Can the surrogate grant any “ extra ” allowance in this case?
No doubt the surrogate’s limited jurisdiction to grant either taxable costs, or any allowance whatever as costs, is wholly dependent on some express statutory provision (Matter of Welling, 51 App. Div. 355, 359); and is embodied in article 15 of the Surrogate’s Court Act on “ Costs and Fees; Commissions and Compensation of Executors ” and others. The opening section (275) of this article 15 declares generally that the surrogate’s power, both in the matter of costs and in that of allowances as costs, is to be exercised “ solely in accordance with the following sections; ” and they deal specially with both subjects. They also deal with the source and manner of payment, whether out of the fund or estate, or some part of it, or personally. (§ 275.)
In this exclusive article 15, special provision, and for that reason presumably complete provision, is made in section 278 for the case at bar, both for the nominated executors as unsuccessful proponents, and for the successful contestant. The latter, in probate, may be awarded costs only under the ordinary scale and per diem that is applicable to “ any other party [than petitioner] who has succeeded in a contest.” (§ 278.) No statute specifically provides that he may be given an indefinite allowance, in lieu thereof, or an “ extra ” allowance in addition thereto. Obviously, there must be the clearest possible statutory warrant before the money of A can be taken to pay B for the legal services B rendered C, at the
The second such “ difficult and extraordinary ” case in surrogate practice is the proceeding to construe a last will; but this is still a case where statutory authority was indispensable to making an extra allowance. It was so held in Walter v. Walter (60 Misc. 570), which was decided before section 278 was accordingly amended in 1925. Hence Surrogate Harrington correctly ruled in Matter of Billings (141 Misc. 84) that as construing a will results in a common benefit to all concerned, the addition of this class of case to section 278, in 1925, authorized the court to make indefinite allowances, as therein prescribed, to the contributing attorneys for the various parties, payable out of the estate; and he adds: “ It should, therefore, be apparent that this amendment to section 278 of the Surrogate’s Court Act * * * was not intended to be construed in the same manner as section 231-a of the Surrogate’s Court Act.”
Section 278, as amended, is the exclusive provision as to any allowance whatever in will construction cases. It is a special provision based on the unusual and complicated nature of this
The third and last case for allowance, not limited to the scale and per diem, is the disposition in Surrogate’s Court of real property, as an incident of accounting and distribution, with matters of title involved, where section 281 authorizes the surrogate to make an indefinite allowance. It would be improper to add the term “ extra ” to the allowance to the special guardian (§ 280); nor can this term “ extra ” be properly applied to the special case of a representative and his own counsel, wherein the declaratory section 279-a has, since 1928, permitted the representative to pay, as he theretofore did, his own counsel for legal services to him as such, a reasonable sum “ in excess of costs and allowances as costs.” All this section did was to expressly legalize a form of customary disbursement, rather than provide for an “ extra ” allowance as costs; because that would be in invitum, whereas the custom and the section postulate the relation of attorney and client.
Notwithstanding no such provision is made for an “ extra ” allowance as costs in probate, each of the instant motions is for an “ extra allowance,” properly so called, in contested probate, although this is otherwise expressly provided for in section 278; and each motion is expressly based on section 231-a which is not found in this exclusive article 15. This section 231-a merely authorizes the surrogate, at any time, to fix and determine the value of an attorney’s services to his own client in surrogate matters, and provide for the incidental hen. It has nothing whatever to do with non-contractual, compulsory exactions by way of costs and allowances as costs. In fact, no where in this section 231-a appears the word “ extra ” or its equivalent; nor does the word “ costs,” or the word “ allowance,” in any form appear therein; nor is there any reference whatever made in section 231-a to the elaborate
When this new section took effect in 1923, every one conversant with surrogate practice took it to be merely declaratory and confirmatory of the otherwise inherent or implied jurisdiction of the surrogate, in liquidating an estate, also to liquidate the obstructive, incidental disputes that might arise over it, or parts of it, as between attorney and client only (Matter of Smith, 111 App. Div. 23), notwithstanding the court of the surrogate is not the court of the enrollment of attorneys at law as officers of court. It was because those disputes hindered distribution and payment that this new section, authorizing the surrogate to pass upon the attorney’s compensation and hen, was tacked onto the tail of article 12 as an addition to that article’s general directions to a legal representative how to proceed with “ Claims; Payment of Debts, Legacies ” and
Nothing in section 231-a suggests the limitations that public policy impresses on demands for “ extra allowance ” as costs, in that the case shall have been both difficult and extraordinary; or if ordinary, resulting substantially in common benefit to the fund or estate, and that in the latter event, no allowance should exceed the ordinary schedule. (Civ. Prac. Act, § 1477.) On the contrary, such particulars as are contained in this section 231-a reflect only the relation of attorney and client, e. g., that “irrespective of the pendency of a particular proceeding,” the surrogate may “ fix and determine the compensation of an attorney,” and “ compel the delivery of papers or funds in the hands of such attorney,” that is, to provide for his lien. To “ fix and determine,” and “ direct payment therefor,” are words that differ much from “ allowing as costs.” The word “ compensation ” is derived from old section 66 of the Code of Civil Procedure (now section 474 of the Judiciary Law) and is associated with the relation of attorney and client; and likewise, the lien (now in section 475 of the Judiciary Law) has only a contractual extension to costs, and then only in some cases.
It is noteworthy here that the relation of attorney and client underlies the great majority of cases which cite and apply this section 231-a. (Matter of Rosenberg, 218 App. Div. 845; Matter of Buttner, 215 id. 62; Matter of Starbuck, 225 id. 689; Matter of Potts, 213 id. 59; Matter of Fay, 224 id. 675; Matter of Smith, 214 id. 622; Matter of Lake, 219 id. 530, App. Book, 8537; Matter of Norton, 139 Misc. 487; Matter of Kennedy, 133 id. 904; Matter of Anderson, 136 id. 110; Matter of Kaplan, 139 id. 414; Matter of Van Volkenburgh, Id. 437.)
On the other hand, among the cases cited to the court herein only four appear to lend some support to the attempts that have been made to divert this section 231-a, by construction, so as to
Then there is Matter of McKenna (226 App. Div. 75, App. Book, 9322), where this point was not properly before the court of review. There an administrator accounted. Seven children of deceased appeared by one firm of attorneys; and three other children by another firm. The seven raised the question of the validity of an assignment of their shares in the estate; and the surrogate held it void. He then allowed the counsel for the seven a lump sum of $1,000 and disbursements, payable out of the estate. The administratrix and the two others argued on appeal that the allowance out of the estate was improper, and excessive in any event; and resulted in no advantage at all to the estate; and that the assignors had only retrieved their own property. Respondents argued the seven had prevented a diversion of nine-tenths of the estate; and especially that there had been no point made to the effect that the procedure was irregular, or that the surrogate lacked power; and they asked the appellate court to allow a more formal application to the court below to fix their compensation under section 231-a, with costs against the estate under section 278. The remittitur modified the surrogate’s decree by striking out the provision allowing a lump sum to counsel for contestants, for that was undoubtedly improper. It further ordered the surrogate to proceed under section 231-a and section 278 to a determination of the allowances and costs. Whether in so doing the question was raised and a proper exception taken does not appear.
The most that can be said of the Lounsberry case is that the successful parties had done something for the common good and were entitled to costs. They could be recompensed in costs, only under the specific and exclusive provisions of section 278, for a party “ who has succeeded in a contest.” But for all that, the estate'could not properly be said to have become the client of their attorneys.
Finally, no cases have been found by any one herein which squarely hold a successful contestant in probate either can, or cannot, get under section 231-a an “ extra allowance ” on top of the special and exclusive provision in section 278 for the recompense as costs that may be awarded to a successful contestant in probate.
Moreover, resort to the general practice of the Supreme Court is also without any justification. If one turn from section 231-a of the Surrogate’s Court Act on account of its inadequacy as a basis for an extra allowance as costs, quite as much doubt will be found to beset the theory that through section 316 of the Surrogate’s Court Act a surrogate can avail himself of section 1513 of the Civil Practice Act to make an extra allowance as costs, of not to exceed five per cent of the value of the subject-matter involved in a “ diffi
In the face of such doubts, Surrogate Schulz, cautioning the courts to “ use great care,” adds: “ It seems quite apparent that if many parties appear in such a matter, which is not unusual, and the fees of the attorney for each were charged against the estate generally, it might be seriously depleted thereby.” (Matter of Vorndran, 132 Misc. 611.) The seven days’ contest of this later will in this $35,000 estate results in demands that the surrogate allow as costs, out of the estate, the gross sum of possibly $7,770. If the moving counsel are correct in their respective claims that section 231-a should be construed to authorize such allowances as costs, then the surrogate’s power in the premises is absolutely unconditional and unlimited; and thus we will have the unique feature in the law of costs of a sweeping power to exact costs that rests on a doubtful construction only. If these motions were now to be decided as a matter of first impression, free from the embarrassment of apparently contrary rulings in the higher court, the foregoing considerations would move any one familiar with probate practice to hold that section 231-a was never intended, nor so framed as to confer unlimited power on a surrogate to grant as costs, out of the estate, any allowance whatever, whether extra or ordinary, either on top of or in lieu of taxable costs, in contested probate, either to an unsuccessful proponent executor, or to a successful contestant, or to an unsuccessful party litigating as special guardian.
If, however, the Lounsberry Case (supra) must be accepted as establishing, by construction, the rule to be in this department that the surrogate has power under section 231-a to grant extra allow
Each of the motions for “ extra allowance ” under section 231-a is, therefore, denied.
Now as to the motion by proponents’ counsel, the contestant objects both to the costs and to the extra allowance on the ground that his clients were unsuccessful, and not acting in good faith, but had unduly influenced the old lady. Failure does not stand in their way, as regards costs, under section 278; and as to good faith, it is not necessary to do more than to refer, as part hereof, to what was written by this court recently in Matter of Roberts (147 Misc. 63) as to this factor of good faith in a motion for costs. It suffices here to say that proponents produced more than a mere scintilla of evidence; and that, without disclosing the prior will, they had quite enough to go to the jury.
The ordinary costs, as taxed, not having been contested in either motion, are allowed, and may be included in the decree to be entered, wherein also allowance to the special guardian will be fixed for insertion upon submission of the decree.
Enter an order in each motion denying the same generally, without motion costs to either party as against the other.