57 N.Y.S. 523 | N.Y. App. Div. | 1899
These are proceedings brought for an accounting by the executors of the wills of Mr. and Mrs. Robinson. The executors of both wills are the same, and so are the persons interested in the two estates and the parties to the proceedings. On the conclusion of the pi’o- • ceedings the appellant, the guardian ad Utem for the Leech infants, applied to the surrogate for an allowance by way of compensation in addition to the taxable costs authorized by section 2561 of the Code of Civil Procedure. The applications were denied by the learned surrogate for want of power, and from so much of the decrees as denies the guardian’s applications, these appeals are taken.
The leaimed surrogate based his conclusion that there was no-power in the court to grant additional compensation to the guardian from the corpus of the estate on the authority of Matter of Budlong (100 N. Y. 203), and Matter of Ruppaner (7 App. Div. 11). The guardian ad litem, while admitting the force of these decisions, insists that .they are applicable only to cases of contested probate,, and that the surrogate has in other proceedings the power to allow to the guardian,_out of the estate or fund in court, compensation for his services, not limited or restricted to taxable costs. For the purposes of his argument the learned counsel has recited at much length the history of Surrogates’ Courts in this State, and has elaborately discussed the inherent power of courts to appoint a guardian adJ litem in actions or proceedings before them, and provide for their compensation. In this discussion we feel it unnecessary to follow the counsel at length, for in our opinion it is based on an erroneous-view of the power, or at least the right, of the court to award compensation to guardians. As an infant must appear in and defend an action or proceeding against him by a guardian, it is necessary that the guardian should be paid for his services. Therefore, in actions in equity, even where the infant has no valu
The guardian ad litem has cited to us several cases from the Surrogate’s Court in the city of New York, showing that compensation in excess of taxable costs has been awarded to guardians ad litem on accountings. If the fund out of which these allowances were made was the property of the wards, then they may be, justified. If the award was out" of the general estate in which others were interested, then we think it was without authority of law, and opposed to the •cases to which we have referred. All that was decided in Weed v. Paine (31 Hun, 10) is that extra allowances authorized by the Code were not limited to the sum of $2,000 in the aggregate, but "that $2,000 might be awarded to the parties on each side. We regard Roberts v. New York Elevated R. R. Co. (12 Misc. Rep. 345) as inconsistent with the cases of Matter of Holden and Doremus v. Crosby. It is, therefore, not to be followed.
The parts of decrees appealed from should be affirmed, but without costs.
All concurred.
• Parts of decrees appealed from affirmed, without costs.