118 N.Y.S. 347 | N.Y. Sup. Ct. | 1909
Attorneys for the various parties in "this action apply to the court for an allowance of costs under the provisions of section 3230 of the Code of Civil Procedure, which provides that, “ Except as prescribed in the last two sections the court may, upon the rendition of final judgment, in its discretion," awárd costs to any party in such sum, not exceeding the total amount authorized by statute, as to the court may seem just.”
This action was brought under the provisions of section 2653a of the Code of Civil Procedure, to set- aside the probate of the will of Ellen M. Dodge, deceased, who left an estate of $100,000 and upwards. The jury by its verdict sustained the will.
It has been held in the recent case of Larkin v. McHamee, 109 App. Div. 884, affd. by Court of Appeals, 188 M. T. 558, that an action brought under section 2653a is not an
The most important question submitted for our determination is to what amount costs may be awarded. It is contended by counsel that the amount which may be awarded is unlimited, and is only governed by the sound discretion and judgment of the court. It is argued that sections 3253 and 3254, which limit the costs to be awarded to a sum not exceeding five per centum of the value of the subject-matter involved, and in no case exceeding $2,000 in the aggregate, have no application to a case such as is here presented, and that, where the amount of costs is not specifically limited by statute, the amount to he awarded may be any sum the court sees fit to give.. Aikman v. Harsell, 31 Hun, 634-636; affd., 98 N. Y. 186.
The contention is undoubtedly correct where no limit is imposed by statute, but the question remains whether section 3230 does not in fact limit the discretion of the court. Prior to the amendment of the section in 1900, no restriction as to the amount which might be given was contained in the section in question, but by the amendment of that year the costs were limited to a sum “ not exceeding the total amount authorized by statuteIt was, of course, the plain intent ' of the Legislature to put a restriction on the courts, and while it is not altogether plain just what statute or provisions were intended to be referred to, to guide the court, we nevertheless are of the opinion that the Legislature intended that the amount of costs to be awarded should not exceed the regular taxable costs allowed in ordinary actions, and thej extra allowance possible, as prescribed in sections 3253 and 3254. To adopt any other view would be to render the amendment made without any force and effect whatever.
Therefore, we conclude that the allowances to be made in this case cannot exceed the regular taxable costs and the $2,000 by way of extra allowance, as therein permitted.
Such being the case, and we being of the opinion that a
The executor of the will was made a party defendant. It was his duty as such to defend this action and to use his best efforts to sustain the will. His necessary and reasonable expenses in retaining and employing counsel in this litigation is a legitimate expense to be paid from and out of the estate he administers, and are allowable as such upon an accounting. These must be paid by him out of the estate in his hands whether this court makes him any allowance oí costs or not in the judgment to be entered as the result of the trial recently had. Jenney v. Lacy, 45 App. Div. 630.
We, therefore, see no occasion for making the executor any allowance beyond the usual and ordinary taxable costs and disbursements in an ordinary action.
The attorney for the plaintiffs asks the court to make the plaintiffs an allowance of $2,500. The court has the power to make an allowance to a defeated plaintiff in an action to set aside the probate of a will, as has been held in the case
These considerations, therefore, leave the $2,000 allowance which we are authorized to make, to be distributed among the legatees first named. We think they are fairly entitled to it. o The case has been an unusually protracted one. The estate is $100,000 and upwards. During the pendency of the litigation incident to the will, it has increased in value to nearly $125,000. The litigation incident to the contest before the surrogate deprived these legatees of the income therefrom for a period, so that within the time the interest on their legacies has reached a considerable sum which has increased the amount and value of the estate of the contestants. The trial took fourteen days. The preparation for the trial involved a large amount of labor on the part of all, and we are of the opinion this court is in no way abusing its discretion in awarding to these legatees, in addition to the regular taxable costs, an allowance of $2,000, to be distributed among them. It is difficult for the court to determine how this distribution should be made. We have, however, taken into consideration, in arriving at the decision, the amount of legacy at stake, the time devoted by each counsel to the case
Let each of the defendants in this action, separately answering the plaintiffs’ complaint, tax and recover, to he paid out of the estate, a separate regular bill of costs, including taxable disbursements.
Let the plaintiffs tax and recover, to be paid out of the estate, a like bill.
An extra allowance of $2,000 is made, to be distributed as follows, to-wit:
Fifteen hundred dollars to the defendants Frank H. Wescott, Jennie B. Dawson, Skaneateles Library Association, an'd the rector, wardens and vestry of St. James Episcopal Church of Skaneateles, appearing by George Barrow, one-quarter to each; $400 to the defendant Flora Moody, appearing by her attorney E. C. Hiller; $100 to Harrison Dodge, appearing by his attorney H. F. Dillon.
Plaintiffs’ motion for a new trial on the minutes is denied.
Hotion denied.