In re James

264 A.D. 885, 35 N.Y.S.2d 791, 1942 N.Y. App. Div. LEXIS 5250

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 1942
• Status: Published

Opinion

Order of the Surrogate’s Court of Putnam County granting an allowance to an unsuccessful party in the above-entitled proceeding to construe a will, and directing the allowance to be paid to said party’s attorneys, pursuant to section 278 of the Surrogate’s Court Act, affirmed, with ten dollars costs and disbursements to the respondents, payable out of the estate. The discretion vested in the surrogate to grant such allowance is not confined to cases where the party requesting the allowance has been successful in the construction proceeding, or where the estate has benefited financially. Although such matters may be proper factors motivating the exercise of the surrogate's discretion in granting an allowance in a given ease, their nonexistence will not preclude an allowance. A party instituting a construction proceeding, in good faith, to resolve a justifiable doubt, caused by the language employed in the will, as to the testator’s intent, may be compensated out of the estate for bis expenses, although he be unsuccessful in the proceeding, and an allowance to him in a reasonable amount is not an abuse of the discretion vested in the surrogate. Lazansky, P. J., Cars-well, Johnston, Adel and Close, JJ., concur.