In re the Estate of Burlein

26 A.D.2d 667, 272 N.Y.S.2d 429, 1966 N.Y. App. Div. LEXIS 3739

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 1966
• Status: Published

Opinion

In a proceeding under section 231-a of the Surrogate’s Court Act, to fix and determine the compensation of the attorney for a coexeeutrix of a decedent for services to her personally, petitioner appeals from a decree of the Surrogate’s Court, Kings County, entered September 3, 1964, which, on reargument, denied the petition. Decree reversed on the law and the facts and application granted to the extent of awarding petitioner a $1,000 fee, with costs payable by respondent personally, Findings of fact contained in the Surrogate’s decisions which are inconsistent herewith are reversed, and new findings made as indicated herein. In our opinion, the record discloses that no conflict of interest was involved under the precise facts at bar. Appellant represented respondent individually as well as in her capacity of estate representative. Such representation was fully disclosed to all interested parties. No objection to the arrangement had ever been raised by an adverse party. Furthermore, after six years of protracted litigation without such objection, we find an implicit consent by the adverse parties. Respondent, being a “ person interested ” in the estate within the intendment of section 231-a of the Surrogate’s Court Act, the learned Surrogate ought to have fixed and determined appellant’s compensation for services rendered to respondent in her individual capacity. We award appellant legal fees of $1,000. Payment of such amount must be made out of the respondent’s share in the estate since said services were beneficial to her in her individual capacity only (Matter of Frame, 245 App. Div. 675). Christ, Acting P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur.