121 Misc. 747 | N.Y. Sur. Ct. | 1923
This is an application to fix the compensation of attorneys who unsuccessfully attempted to have a paper purporting to be a will admitted to probate on behalf of one of the legatees named therein. After a decision ,by Surrogate Slater of Westchester county denying probate, the petitioners took appeals to the Appellate Division and subsequently to the Court of Appeals, where the decision of the surrogate was .affirmed. No allowance was made in the final decree denying probate to any party or to any attorney representing a party interested in the estate, except to the next of kin, who were the successful parties. The petitioners now seek to have this court fix their compensation and direct payment by the temporary administrator, appointed by this court, out of the funds now in his hands.
The power of the surrogate to grant allowances or costs is derived wholly from statutory provisions. Matter of Mary L. Eddy, 207 App. Div. 162; Matter of Welling, 51 id. 355; Matter of Hendel, 106 Misc. Rep. 417. Section 278 of the Surrogate’s Court Act provides that costs “ shall not be awarded to an unsuccessful contestant of a will unless he is a special guardian for an infant or incompetent, appointed by the surrogate, or is named as an executor in a paper propounded by him in good faith as the last will of the decedent.” It further provides that “ where a person named as the executor in a will propounds the will for probate, such person so named as executor may, whether successful or not, in the discretion of the surrogate, be awarded costs and all necessary disbursements made by him and all expenses incurred in the attempt to sustain the will.” It should be noted that an allowance for costs or expenses to a proponent of a will is limited by this statute to one named therein as executor. The alleged will, in the present instance, was first offered for probate by one of the next of kin and subsequently by one of the legatees, but not by the legatee represented by the petitioners here. The petitioners, therefore, do not come within the class of persons enumerated in said section 278 of the Surrogate’s Court Act to whom an allowance for counsel fees may be made in a contested probate proceeding.
With this legislative intent in mind, I cannot find any authority in section 231-a of the Surrogate’s Court Act for allowing compensation out of the funds belonging to other persons, to attorneys for one named as a legatee in a paper which failed of probate as the decedent’s will. Of course, cases may occur where the services of counsel for a beneficiary resulting in advantage to the estate, may properly justify an allowance out of the estate generally, for example, where compulsory accountings are obtained and funds converted by an executor or administrator are recovered through the efforts of counsel for a beneficiary. But, in this estate, the services in no way inured to the benefit of the estate.
Incidentally, it should be pointed out that the proper procedure in an application to fix counsel fees is by citation or order to show cause to the parties interested, and particularly to those whose funds bear the burden of the charge, and not by notice of motion. Matter of Rabell, supra.
Application denied. Settle order on notice.
Ordered accordingly.