MATTER OF GERARD.

First. To Mr. Platt, one of the parties here accounting, the testator, by a codicil to his will, gave a fixed annual compensation, in lieu of that which the statute prescribes, for services in the administration of an estate. No part of this compensation has as yet been paid, though several years have elapsed since he first assumed the duties of his trust. His counsel now claims that he should be allowed interest upon his legacy, at the statutory rate. The language of the codicil, so far as it need be quoted for present purposes, is as follows:

"I give to James N. Platt, one of my executors and in full and in lieu of all charges and

trustees,

commissions

the sum of $500 a year, for ten years after my decease, to be paid to him at the end of each successive year after my decease."

It does not seem to be disputed that, from the beginning of their administration, the executors have been in possession of funds from which Mr. Platt might have retained, as promptly as they fell due, the respective sums to which he has annually become entitled. This circumstance is fatal, I think, to his claim for interest. Indeed, it might well be doubted whether such a claim could be maintained, even if the executor's delay in appropriating his legacy had been necessitated by insufficiency of assets applicable to its payment (Morris v. Kent, 2 Edw. Ch., 175; Adams v. Gale, 2 Atk., 106). However that may be, it seems clear that, by suffering his bequest to remain uncollected when he had full authority to withdraw it from the estate, he has not entitled himself to the payment of interest.

Second. The second codicil to the testator's will contained the following provision: "In a former codicil I gave Mr.

MATTER OF GERARD.

Platt as one of my executors five hundred dollars a year for a certain number of years. I have made no provision to pay my son and Mr. Buckley, the other executors, any commissions, because they will work for themselves and their children."

The italicised portion of the above quotation admittedly refers to the fact that, by his various testamentary instruments, the decedent had made liberal provision for the family of his son, and for that of Mr. Buckley, his sonin-law.

The language which I am asked to construe seems to me so explicit that no words of interpretation can make it clearer. I think that the testator meant to provide that in no contingency should either Mr. Platt or Mr. Buckley receive any compensation, whatever, for performing the duties of his trust. The counsel for the accounting parties does not deny that the Surrogate is bound to refuse compensation to executors, whenever the will of their decedent absolutely forbids its allowance (Meacham v. Stearnes, 9 Paige, 403). But he claims that, in the present case, it was the expectation of the testator that Mr. Buckley would qualify as executor, and perform, as such, his fair share of the laborious and complicated duties which the will imposed, and that, if the testator had contemplated that the entire burden of administering the estate would fall upon the parties now accounting, he would have made some specific provision for their compensation, or at least have left unimpaired their right to the statutory compensation.

It is profitless to speculate about the testator's intentions in this regard, except as those intentions are disclosed by his language. And his language is not suffi

MATTER OF GERARD.

ciently elastic to permit the interpretation which is here sought to be put upon it. If the terms of the will and codicils were such that the benefits which they conferred upon his son and his son's children were curtailed by the early death of Mr. Buckley, and by his failure to render service as executor, there might possibly be some foundation for the claim which is here set up. But such is not the case. And the testator has given no intimation that either his distinct allowance of compensation to Mr. Platt, or his distinct denial of compensation to Mr. Platt's associates, should be dependent, in the least, upon the extent of the service, or the magnitude of the responsibility, which the proper conduct of the affairs of his estate might be found to involve. He directed that Mr. Platt should receive an annual recompense of $500, apart from considerations as to the amount of his labors, or the nature of the assistance received from his associates, and he directed that Mr. Gerard and Mr. Buckley should go un rewarded, whether they give much or little time and trouble, or no time or trouble at all, to the details of administration.

When the testator said "they will work for themselves and their children," he meant that they would at all times render gratuitously whatever service the exigencies of the case might demand.

None of the persons named as executors were bound to accept the trust, but such of them as assumed its duties became bound by the conditions which the testator had chosen to impose, however stringent such conditions might prove to be (Secor v. Sentis, 5 Redf., 570).

A decree may be submitted for settlement in conformity with this decision.

SCHELL V. HEWITT.

NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-May, 1883.

SCHELL V. HEWITT.

In the matter of the estate of EDWARD HEWITT, deceased.

In the absence of a direction by the appellate court, a Surrogate's court has no authority to compensate a special guardian appointed by it, for services rendered on an appeal from its determination. Code Civ. Pro., § 2589, providing that the costs of an appeal from a Surrogate's determination "may be made payable out of the estate or fund, or personally by the unsuccessful party, as directed by the appellate court; or, if such a direction is not given, as directed by the Surrogate," does not empower the Surrogate to award costs of the appeal. The Surrogate's direction can relate only to the mode of pay

ment.

Having no power to award costs of an appeal, a Surrogate cannot, under the form of such an award, remunerate a special guardian who has acted as such on the appeal.

It seems, that Code Civ. Pro., § 2566, providing, in respect to a Surrogate's court, that "each other officer, including a referee, and each witness, is entitled to the same fees, for his services .

as

he is allowed for like services in the Supreme Court," includes special guardians appointed by the former court, as regards services rendered in proceedings therein.

APPLICATION, by Francis Schell, special guardian of decedent's infant children, on the proceeding to prove his alleged will, for compensation, out of the estate, for services rendered by himself, as such guardian, on appeal from the Surrogate's decree refusing probate; opposed by Minnie Hewitt, administratrix of decedent's estate. The facts appear sufficiently in the opinion.

JOHN DELEHANTY, for special guardian.

TEN EYCK & REMINGTON, for administratrix.

SCHELL V. HEWITT.

THE SURROGATE.--An instrument purporting to be the last will of Edward Hewitt was, in the year 1881, offered for probate in this court. A contest thereupon arose, which resulted adversely to the proponents. While that contest was pending, the applicant in the present proceeding was appointed special guardian of decedent's minor children. He represented them in the probate controversy, and, by the Surrogate's decree, was allowed, as compensation therefor, the sum of $25, which he has since received.

From this decree, which denied probate to the paper propounded as a will, an appeal was taken to the Supreme Court. A judgment of affirmance was there pronounced, which was itself subsequently affirmed by the Court of Appeals.

The special guardian alleges that, during the pendency of these appellate proceedings, he rendered services which are worthy of compensation, and he now asks that such compensation be awarded him out of the assets of the estate. In opposition to this claim, it is urged that the functions of the applicant, as special guardian, ceased with the entry of the Surrogate's decree, and that he was neither required nor empowered, by virtue of his office, to represent the infants thereafter. This view, as it seems to me, is correct. If the interests of an infant need protection, in proceedings upon appeal from the Surrogate, it is the province of the appellate court to appoint for that purpose a guardian ad litem (Kellinger v. Roe, 7 Paige, 363; Underhill v. Dennis, 9 Paige, 209; Chaffee v. Baptist Miss. Conv., 10 Paige, 89; Moody v. Gleason, 7 Cowen, 482; Fish v. Ferris, 3 E. D. Smith, 567).

It is, doubtless, true that, if an appellate court, though