In re Lamb's Will

New York Surrogate's Court

In re Lamb's Will

5 N.Y.S. 565, 22 N.Y. St. Rep. 351, 1889 N.Y. Misc. LEXIS 2520

CourtNew York Surrogate's Court

DecidedFebruary 28, 1889

StatusPublished

Cited by1 cases

This text of 5 N.Y.S. 565 (In re Lamb's Will) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Lamb's Will, 5 N.Y.S. 565, 22 N.Y. St. Rep. 351, 1889 N.Y. Misc. LEXIS 2520 (N.Y. Super. Ct. 1889).

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Opinion

Abbott, S.

The power of the surrogate to award costs in a contested will case, “payable out of the estate or otherwise,” is limited to the award of costs to the executor propounding the will, to an unsuccessful contestant who is a special guardian for an infant, and to such parties to the proceeding as are successful. Under the above limitations costs are in the discretion of the surrogate. Mr. Tighe is not a special guardian for an infant, and represents an unsuccessful contestant. I am of the opinion that the surrogate is without j urisdiction to award costs to him, payable out of the estate or otherwise. He must look to the estate of his ward for compensation, I am also of the opinion that the surrogate has no jurisdiction to award costs to Mr. Cothran, who represents the infant, Thomas M. Lamb, a grandchild of testator, as counsel only. The infant intervened in the proceeding, but no special guardian was appointed for him. The utmost I could do would be to award costs to his special guardian; but, there being none, I am unable to see how any costs can be awarded to Mr. Cothran, his counsel. The executors are clearly entitled to costs. The affidavit filed by counsel for the executors shows that the trial, or hearing upon the merits, before the surrogate, occupied 31 days; deducting 2 days, there remains 29 days, at $10 a day,—$290; add $70, costs and the total is $360, which sum I hereby allow to the executors for their costs, to be paid out of the estate.

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Abbott, S.

The power of the surrogate to award costs in a contested will case, “payable out of the estate or otherwise,” is limited to the award of costs to the executor propounding the will, to an unsuccessful contestant who is a special guardian for an infant, and to such parties to the proceeding as are successful. Under the above limitations costs are in the discretion of the surrogate. Mr. Tighe is not a special guardian for an infant, and represents an unsuccessful contestant. I am of the opinion that the surrogate is without j urisdiction to award costs to him, payable out of the estate or otherwise. He must look to the estate of his ward for compensation, I am also of the opinion that the surrogate has no jurisdiction to award costs to Mr. Cothran, who represents the infant, Thomas M. Lamb, a grandchild of testator, as counsel only. The infant intervened in the proceeding, but no special guardian was appointed for him. The utmost I could do would be to award costs to his special guardian; but, there being none, I am unable to see how any costs can be awarded to Mr. Cothran, his counsel. The executors are clearly entitled to costs. The affidavit filed by counsel for the executors shows that the trial, or hearing upon the merits, before the surrogate, occupied 31 days; deducting 2 days, there remains 29 days, at $10 a day,—$290; add $70, costs and the total is $360, which sum I hereby allow to the executors for their costs, to be paid out of the estate.

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Bluebook (online)

5 N.Y.S. 565, 22 N.Y. St. Rep. 351, 1889 N.Y. Misc. LEXIS 2520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lambs-will-nysurct-1889.

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