See EQUITABLE Conversion; General GuarDIAN, 6; LEGAcy, 4; Stat- CTE OF LIMITATIONS, 1.
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.
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.
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.
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.”
See ADMINISTRATOR, WITH WILL ANNEXED, 2.
See ABATEMENT; GIFT CAUSA MORTIS; WILL, 7.
See EVIDENCE, 1; PUBLICATION OF WILL; REVOCATION OF PROBATE, 1.
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.
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.
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.
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
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