CONVERSION.

See EQUITABLE Conversion; General GuarDIAN, 6; LEGAcy, 4; Stat-
CTE OF LIMITATIONS, 1.

CORPORATION.

The details of administration of an intestate's estate are of such a nature as
to render it more fitting that the duties of an administrator should be
performed by an individual than by a corporation. Goddard v. Public
Administrator, 480.

See DISCOVERY OF ASSETS, 2.

COSTS.

1. 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 ter-
minating 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. Matter of Sexton, 3.

2. 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. Id.

3. 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 es-
"tablished by the Code Civil Procedure, as distinguished from the laws
which it has replaced. Id.

4. Code Civ. Pro., § 2561, 2562, which, except in certain rare cases, govern
the grant of costs and allowances in a Surrogate's court, substantially
declare that (1) however eminent may be the counsel who renders legal
services in a proceeding, for any other party than an executor, an ad-
ministrator, a guardian or a testamentary trustee, the maximum amount
which can be taxed for those services in favor of his client or for his
own benefit is the sum of seventy dollars, together with ten times as
many dollars as there have been days, less two, necessarily occupied in
the trial or hearing; and (2) precisely the same limitations apply also to
executors, administrators, guardians and testamentary trustees, except
that, upon the final accounting of such officers, they may be awarded,
in addition, not more than ten dollars for each day employed in the trial
and necessarily occupied in preparing therefor, and in arranging and
setting out the account Walton v. Howard, 103.

5. Whether it is the counsel's or the client's time whose necessary occupation
is to be considered in this connection, quare. Id.

6. It seems, that parts of days are not synonymous with days so necessarily
occupied, for the purposes of the statute. Id.

7. Code Civ. Pro., § 2589, providing that the costs of an appeal from a Sur-
rogate'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 Sur-
rogate's direction can relate only to the mode of payment.
Herritt, 249.

Schell v.

8. One contesting the probate of a will applied to the Surrogate for an al-
lowance out of decedent's estate, by way of compensation for the serv-
ices of her counsel in connection with the appointment of a temporary
administrator, and divers other proceedings, all of which terminated in
"orders."-Held, that, under Code Civ. Pro., § 2556, ten dollars, mo-
tion costs, was the maximum lawful allowance to a party, upon the
making of each order. Stokes v. Dale, 260.

9. The summing up of counsel, upon executors' accounting, is a "hearing
upon the merits," for which the per diem allowance of costs, specified
in Code Civ. Pro., § 2561, may properly be made. Du Bois v. Brown,
317.

10. The time which may have been spent by an attorney in preparing plead-
ings, making briefs, ascertaining facts, appearing upon an adjournment
or appearing to settle a decree, is no part of the "trial or hearing upon
the merits," within the meaning of that section. Id.
11. In order to enable the Surrogate to act understandingly, in awarding
costs and allowances to an accounting executor, etc., under Code Civ.
Pro., 2561, 2562, he should present an affidavit showing separately the
number of days necessarily occupied (1) by the trial or hearing upon the
merits, (2) in preparing the account for settlement, and (3) in otherwise
preparing for the trial. A statement of the whole number of days, in
gross, is improper. Id.

12. An executor, etc., who, upon an accounting, receives the maximum
award of per diem costs, under Code Civ. Pro., § 2561, viz.: ten dollars
a day, for each of the days, less two, occupied in the trial may, under id.,
§ 2562, authorizing an award of "not exceeding ten dollars for each day
occupied in the trial," be allowed twenty dollars, in addition, for the
two days excluded by the former section. Id.

13. Upon an application to a Surrogate's court, for costs and allowances, a
bill of costs and disbursements, including stenographer's fees, should
be presented, and notice of taxation be given, as in the Supreme court.
Id.

14. An application, under Code Civ. Pro., § 1381, subd. 2, for leave to issue
execution against a decedent's property, is an original special proceed-
ing, commenced by petition and citation, and terminating in a decree

or final order which may, in case of a contest, award costs as provided
in id., § 2561. Gillies v. Kreuder, 349.

See COUNSEL FEES; PROBATE OF WILL, 5; REVOCATION OF PROBATE, 2;
SPECIAL GUARDIAN, 4.

COUNSEL FEES.

1. On a proceeding to determine whether the bond of an administratrix
afforded adequate security to the creditors, etc., of the estate, an order
directing that the moving party "be allowed for his costs and expenses
the sum of two hundred and seventy-five dollars, to be paid to his counsel;
that the administratrix be allowed for her costs and expenses the sum of
one hundred and fifty dollars, to be paid to her counsel;" and that she
take these moneys out of the funds of the estate and deposit them with
the clerk for disbursement, in accordance with these provisions, was—
Held, objectionable, and set aside on the grounds that, 1. Under Code
Civ. Pro., there is no provision whereby the Surrogate can lawfully
award compensation out of a decedent's estate directly to the counsel of
parties litigant; the defect in the order not being cured by the circum-
stance that it, in form, granted costs to the parties and not to their
attorneys. 2. It required the administratrix to compensate her own at-
torney. Walton v. Howard, 103.

2. While one acting as executor cannot lawfully receive counsel fees for
services rendered by him to decedent's estate, an accounting executor's
claim to be reimbursed for payment of such fees to one named in the
will as executor who has never taken letters or exercised any execu
torial control over the estate, though he has filed no renunciation, must
be passed upon precisely as if the latter had not been so named. Camp
bell v. Mackie, 185.

3. It seems, that if one so named, but not acting as executor, render legal
services to the estate, the payment to him of a legacy given to him as
executor would not preclude the acting executor from claiming such
reimbursement on his accounting, but would only justify the disallow-
ance of credit for payment of the legacy. Id.

See ACCOUNTING, 3, 6; COSTS; TEMPORARY ADMINISTRATOR, 4.”

CREDITOR.

See ADMINISTRATOR, WITH WILL ANNEXED, 2.

DEATH.

See ABATEMENT; GIFT CAUSA MORTIS; WILL, 7.

DECLARATIONS.

See EVIDENCE, 1; PUBLICATION OF WILL; REVOCATION OF PROBATE, 1.

DELUSION.

See INSANE DELUSION.

DEPOSIT.

1. The only statutory provision permitting a Surrogate's court to order a
deposit of the property of an estate in a bank or trust company is Code
Civ. Pro., § 2602, which applies exclusively to the case of a disagreement
among co-executors, etc. In the absence of such an exigency, an order
to that effect cannot be justified as coming within the provisions of id.,
§ 2481, subd. 5, or subd. 11. Guion v. Underhill, 302.

2. The executor of decedent's will presented a petition for the revocation of
the letters of the executrix thereof, to whom the will gave the entire
estate for life, with remainder over, upon the ground, among others, that
she had taken exclusive possession of the entire estate, refusing to allow
him any custody or control thereof, or access to the books and papers re
lating thereto, and claimed that she was the sole and absolute owner
thereof. The respondent admitted her exclusive possession, etc., of
the property which petitioner contended belonged to decedent's estate,
asserted her title thereto, and showed that she had commenced an
action in the Supreme court to establish such title.-Held, that the let-
ters could not be revoked for such cause; but that the remaindermen
should be protected during the pendency of respondent's action; and
that, accordingly, respondent should be required (1) to file an account
as executrix, and (2) under the authority granted by Code Civ. Pro., §
2602, to deposit the property in dispute, in a trust company, to the joint
credit and subject to the joint order of the executor and executrix until
further order, each being enjoined from any interference therewith, in
the meantime, except that the executrix should have the exclusive en-
joyment of the income. Hassey v. Keller, 577.

See GIFT CAUSA MORTIS, 1, 2; LETTERS OF ADMINISTRATION, 3.

DEVISE.

See DOWER; LEGACY; PROBATE OF WILL, 1; SALE OF REAL ESTATE, 1;
SURPLUS MONEYS.

DISAGREEMENT OF EXECUTORS, ETC.

See DEPOSIT, 1, 2; EXECUTORS AND ADMINISTRATORS, 2.

DISCOVERY AND INSPECTION.

Where pending an accounting under Code Civ. Pro., § 2606, the suc-
cessor of the deceased executor asked that the accounting party be re-
quired to produce and discover certain books and vouchers under her

control, upon an allegation that the deceased executor kept such books
and vouchers, and that an inspection thereof would show what amount
was due from him as executor, at the time of his death, which amount
petitioner alleged to be $20,000.—Held, that the allegations did not jus-
tify the issuance of the order prayed for, since the accounting party
could not be held responsible, in that proceeding, for her testator's in-
debtedness as executor, and, it was, therefore, fruitless to enquire into
the nature and extent thereof. Le Count v. Le Count, 29.

DISCOVERY OF ASSETS.

1. In a proceeding by an executor, etc., to discover the assets withheld, an
answer, under Code Civ. Pro., § 2710, as amended in 1881, that the per-
son cited is the owner of the property" in question, is sufficient with-
out showing how he became such; but where he claims to be "entitled
to the possession thereof, by virtue of a lien thereon or special property
therein," he must allege facts necessary to sustain the claim. Metropol
itan Trust Co. v. Rogers, 365.

2. Decedent's executor having instituted proceedings under Code Civ. Pro.,
§ 2706, to compel one R. to make discovery concerning certain property
of the estate alleged to be in his possession, consisting of the capital
stock of the A. company, and the stock and bonds of other corporations,
respondent interposed an answer, to the effect that he was entitled to
the possession thereof by virtue of a lien thereon and special property
therein as receiver, appointed by the Supreme court, of the property of
the A. company, or in which it had any beneficial interest.-Yeld, that
this, though conclusive as to the stock of the A. company, was insuffi-
cient as to the other stock and the bonds; but that, the nature of re-
spondent's property in the latter being indicated on the argument, he
should be allowed to file an amended answer, embodying the necessary
allegations in respect thereto. Id.

DISPOSITION OF REAL PROPERTY.

See SALE OF REAL ESTATE.

DISPUTED CLAIM.

1. The rule still prevails, under the Code of Civil Procedure (§ 2743), which
must be deemed to have been substantially deduced, by the adjudica-
tions, from the former statute (R. S. part 2, ch. 6, tit. 3, § 71), viz.: 1st.
That the delegation, to Surrogates, of authority to decree, upon the
final accounting of an executor or administrator, a distribution to claim-
ants "according to their respective rights," gave them no power to as-
certain and determine what those rights were, except in cases where
they were conceded to exist. 2d. That the imposition, upon the Sur-
rogate, of the duty "to settle and determine all questions concerning