In re Russell, Shevlin & Russell

257 A.D. 827, 11 N.Y.S.2d 908, 1939 N.Y. App. Div. LEXIS 8052

Opinion

Decree of the Surrogate’s Court, Queens county, modified by striking out the first ordering paragraph thereof and, as so modified, unanimously affirmed, with one bill of costs, payable out of the estate to all appellants. The matter is remitted to the surrogate to ascertain the value of the services rendered by the attorneys-appellants in opposing the probate of a paper writing as the last will and testament of Charles A. Limberg, deceased, and to make an allowance to said attorneys-appellants pursuant to section 231-a of the Surrogate’s Court Act. As the result of the services of attorneys-appellants, a paper writing purporting to be the last will and testament of Charles A. Limberg, deceased, was denied probate. The estate is now being administered and is to be distributed in accordance with the statutes governing intestacy. All of those who will share in such distribution have been benefited by reason of the services of the attorneys-appellants. Thus these services conferred a benefit upon the estate, for an estate cannot be considered simply as a mass of property irrespective of and divorced from those who are entitled, to share therein. If an allowance out of the general assets were denied, an anomalous situation would ensue. A contestant would then have to bear the expense for the attorneys’ fees out of his own share despite the fact that his efforts resulted in equal benefit to all remaining distributees, who would thereupon profit by their inaction. Present — Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ.