REPORTS OF CASES ARGUED AND DETERMINED IN THE SURROGATES' COURTS OF THE STATE OF NEW YORK. NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-June, 1882. CORNWELL v. CORNWELL. In the matter of the estate of CATHARINE WEEKS, deceased. A contest having arisen upon an application for the probate of a will, which it appeared would necessarily cause delay in granting letters testamentary, one of the executors named in the will, who was charged by contestant with unduly influencing decedent in respect to the same, applied, under Code Civ. Pro., § 2668, for his own appointment as temporary administrator. Held, that such appointment would be improper, and that the application must be denied. Howard v. Dougherty, 3 Redf., 535-approved. PETITION by Jacob Weeks Cornwell, named as executor in decedent's will, for his appointment as temporary administrator of her estate; opposed by Andrew S. Corn VOL I.-1 CORNWELL V. CORNWELL. well, one of decedent's next of kin, contestant. The facts appear sufficiently in the opinion. VAN WINKLE, CANDLER & JAY, for petitioner. J. M. PETERS and WM. FULLERTON, for A. S. Cornwell. THE SURROGATE.-The decedent died on the 7th of April last, and on the 24th of that month an instrument purporting to be her will was propounded for probate. A contest has arisen which is likely to cause delay in granting letters, and which, therefore, makes advisable the appointment of a temporary administrator under § 2668. Mr. Jacob W. Cornwell, who is named in the alleged will as one of the executors, petitions for his own appointment as temporary administrator. This application is opposed by the contestant, who charges him with unduly influencing the decedent in the making of the will. Under such circumstances I have several times held, in accordance with the suggestion in Howard v. Dougherty (3 Redf., 535), that ordinarily the person named as executor ought not to be appointed temporary administrator. There are exceptions to this rule of exclusion, but the case at bar comes within the rule. I am the more disposed to this view, because of the fact that no objection is urged by the moving party to the selection of Mr. George W. Weeks, who is named in the will as Mr. Cornwell's co-executor, and whose appointment would be satisfactory to the contestant. An order appointing Mr. Weeks as temporary administrator may, therefore, be presented for settlement. MATTER OF SEXTON. NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-June, 1882. MATTER OF SEXTON. In the matter of the estate of JOHN SEXTON, deceased. The provisions of Code Civ. Pro., § 3352, and of L. 1880, ch. 245, § 3, subd. 2, saving rights accrued before September 1st, 1880, from the effect of the repeal of prior statutes, do not affect a claim to the costs of a special proceeding commenced in a surrogate's court before, and terminating after that date, since a claim to costs, if regarded as a right, does not accrue until the termination of the special proceeding to which they belong. Those portions of Code Civ. Pro., §§ 2557-2567, which declare under what circumstances costs may be allowed, and what shall be the limits of the allowance, are not regulations of the proceedings taken in a special proceeding, and so are not within the provisions of Code Civ. Pro., § 3347, subd. 11, and L. 1880, ch. 245, § 3, subd. 5, which substantially declare proceedings taken in a special proceeding commenced before September 1st, 1880, to be governed by prior statutes. Hence the question of awarding, and the determination of the amount of costs in a special proceeding commenced in a surrogate's court before and terminating after September 1st, 1880, depend upon the rules established by the Code of Civil Procedure, as distinguished from the laws which it has replaced. Rich v. Husson, 1 Duer, 617-approved; Matter of Mace, 4 Redf., 325-followed. APPLICATION for costs and allowances in a special proceeding instituted by the administrator in November, 1879, for the sale of decedent's real property. Further facts appear sufficiently in the opinion. JOHN MCKEON, for the administrator. THOS. H. HURLEY, a creditor, in person. WM. ROTHSCHILD, for Benjamin Epter, a creditor. JOHN VINCENT, special guardian for John R. S. Kein, an infant heir. MATTER OF SEXTON. THE SURROGATE.-This is an application for costs and allowances. Proceedings upon a petition for leave to sell decedent's real estate were commenced in November, 1879, and have just been concluded. In the interval, the present Code of Civil Procedure has become law. Upon this state of facts, the question arises, should the costs in this proceeding be adjusted by the laws which the Code has replaced, or by the Code itself? Manifestly by the latter, unless the former, which have been in terms repealed, still survive for such purposes as the present. When the first steps were taken for the sale of this real estate, and at all times thereafter until September 1, 1880, there were in force two statutory provisions, and two only, in relation to costs and allowances to parties and counsel in Surrogates' courts. One of these was contained in Part 3, chap. 2, title 1, section 10 of the Revised Statutes. It was as follows: "In all cases of contest before a Surrogate's court, such court may award costs to the party in the judgment of the court entitled thereto, to be paid either by the other party personally or out of the estate which shall be the subject of such controversy." The other statutory provision, in force when this proceeding began, was section 9, chap. 359, Laws of 1870. It declared that the Surrogate of New York county might "grant allowances in lieu of costs to counsel in any proceeding before him, in the same manner as prescribed by the Code of Procedure in civil actions. " These statutes were both expressly repealed by the General Repealing Act which took effect simultaneously with Part 2 of the Code of Civil Procedure (Chap. 245, Laws 1880). By section three of that act it was, how MATTER OF SEXTON. ever, declared that such repeal did "not affect any right lawfully accrued or established before" that act took effect. Section 3352 of the Code also contains a provision in almost precisely the same words. As a claim for costs and allowances may, in some sense, be regarded as a "right," even though the granting or withholding them may be discretionary, the question naturally suggests itself, whether, by this saving of accrued rights, the repealed statutes still furnish the standard by which this application must be tested. That such is not the case appears from a great multitude of decisions. The doctrine has been long established, in this State and elsewhere, that costs do not accrue until the termination of the action to which they relate (Supervisors v. Briggs, 3 Den., 173; Rich v. Husson, 1 Duer, 617; Smith v. Castlers, 5 Wend., 81; The Brooklyn Bank v. Willoughby, 1 Sandf., 669; Scudder v. Gori, 18 Abb. Pr., 207; Moore v. Westervelt, 14 How., 281; Ackley v. Tarbox, 19 Abb. Pr., 119; Steward v. Lamoreaux, 5 Abb. Pr., 14; Hunt v. Middlebrook, 14 How. Pr., 300; Rader v. Road District, 36 N. J. Law, 282; Theriot v. Prince, 12 How. Pr., 451). There is one other provision in the General Repealing statute, and only one, which is claimed to have a bearing upon the present contention. Section 3 of that act declares, in its subdivision 5, that the repeal "does not affect any future proceeding taken pursuant to law in an action or special proceeding." Similar words of limitation are found in the Code itself, which provides (sec. 3356) that chapter 18 (relating to Surrogates' courts, and, among other things, to costs and allowances therein, §§ 2557-2567) shall take effect |