16 Abb. Pr. 127 | N.Y. Sup. Ct. | 1863
The testator directed the residue of his estate to be divided between his brother William and the children of his deceased sister Ellen, and the daughter of his brother John, in equal proportions, “ share and share alike.” The surrogate decreed a distribution among the legatees per capita, giving each of the nephews and nieces an equal share with the brother.
The rule as applied by the surrogate was, I think, correct. Had the testator said, I give to my brother, and to the children of his brother and sister, by naming each of them as a legatee, and added, in equal proportions, “ share and share alike,” there would be no doubt of the right of each of the children to an equal share. The mere grouping the children of Ellen under that title, instead of naming them individually, does not alter the right of each. It does not appear that the testator intended to divide his estate into classes, from which the intent to adopt a different rule might be inferred. (Aubrey a. Newman, 17 Eng. L. & E., 125.)
The objection that there was no proof before the surrogate that the children of Ellen were living, is not well taken. They were parties to the proceeding before the surrogate, and are parties to this appeal. Ho objection of that kind appears to have been made below. We may therefore conclude that all parties assented before the surrogate to the' fact of their being alive.
The surrogate allowed to the counsel of the parties counsel-fees, to be paid out of the estate. 3 Rev. Stat., 5 ed., 376, § 25, says that in all cases of contest before a Surrogate’s Court, such court may award costs to the party entitled thereto; and section 23 says that such costs shall be taxed at Common Pleas rates, that is, as they existed in 1837.
Before this statute the surrogate had no power to award costs, and as these provisions confine him to costs to the successful party, I see no authority to award counsel-fees to be paid out of the estate to both of the contesting parties.
The portion of the decree directing the payment of the counsel-fees should be reversed; the residue affirmed.
Sutherland, P. J., and Clerke, J., concurred.