64 N.Y.S. 1025 | N.Y. App. Div. | 1900
• This is an' appeal from the parts of a decree on a judicial accounting in the Surrogate’s Court of Orange county that give certain allowances. The accountants are a testamentary trustee and the executors of her deceased cotrustee. Under section 2562 of the Code of Civil. Procedure, $1,590 was allowed to the- executors of the said testamentary trustee or to the attorneys who prepared the accounts, and $400 -was allowed to the said executors in' lieu of full half commissions for receiving the corpus of the trust fund. Some of the residuary legatees and remaindermen and the said executor and cotrustee take appeals therefrom. And the latter also appeals from that part of the decree awarding allowances to attorneys representing different remaindermen and residuary legatees.
In review of the surrogate, this court is vested with -the same
1. As to the allowance. The affidavit of the attorney certifies that he was engaged 159 days, states his views of the necessity of his services, and is supported by the affidavits of an assistant and of one of the accounting executors. It appears that at the death of one of the two éxecutors and testamentary trustees, there was a large deficit of the trust funds that must be laid entirely at his door. This deficit was, in part, made good out of his estate, and á compromise followed. The affidavit of the. attorney states that he .prepared a statement upon which the compromise was based, and the details thereof appear in . a schedule of the accounts filed. But we cannot see that such statement ivas necessarily a part of the accounts. An accounting herein was demanded-in December, 1898, which was, however, regularly adjourned to the day of the final decree herein, in October, 1899. On January 21, 1899, the compromise of this deficit was made, recorded and executed, and, in August, 1899, a voluntary accounting was begun, whereupon the two proceedings for account-" ing were consolidated. Bpon the attorney’s own showing, a considerable part of his labors was devoted to the work preliminary and incidental to this compromise and it is also established that he was retained for that purpose. Moreover fifty-six of the days specified in his affidavit fell prior to the date of "the compromise, and, presumably, were devoted to the work of the. compromise. Such part of his labors, in our opinion, can form no basis for any allowance based upon section 2562 of the Code of Civil Procedure, for it does not appear that such time, was necessarily occupied in preparing this account for settlement. The claim must be presented anew to the learned' surrogate, who, we think, may properly make such allowance as is justified by the work germane to this accounting. Further, the allowance must be made to the executors and not to their counsel. (Seaman v. Whitehead, 78 N. Y. 306, 308 Code Civ.. Proc. § 2562.)
2. As to the allowance of $400 to the executors of the deceased.
3. We think that the learned surrogate erred in granting any allowance to the two attorneys who represented' legatees and remaindermen, and that -he had no power in the premises even if he had made thé allowance payable dii’ectly to their clients. His power to grant allowances or costs is derived wholly from statutory provisions. (Jessup Suit. Pr. 256, and cases cited; McMahon v. Smith, 20 Misc. Rep. 305, and cases cited.) None of the remainder-men. or legatees stands as a successful party upon the accounting, for none succeeded in either surcharge or disallowance. We do not doubt that these attorneys rendered valuable services to their respective clients both in bringing about the compromise and upon the accounting. Their fees should be paid by their clients, and not in whole or in part be made a charge upon the funds of the estate under the guise of allowances that are not sanctioned by the statutes, or of costs that cannot be allowed under the law.
We are of opinion that the decree must be reversed in the parts relative to the allowances and commissions as indicated in this opinion, without costs of this appeal to any party. . The proceedings are remitted to the surrogate of Orange county for resettlement of the decree in accordance with this opinion. .
All concurred.
Decree reversed so far as it relates to allowances and commissions, without costs of this appeal to any party, and proceeding remitted-to .the Surrogate’s Court of Orange county to be disposed of in .accordance with the opinion of Jenks, J.