In re the Estate of Reardon

37 Misc. 2d 348, 234 N.Y.S.2d 471, 1962 N.Y. Misc. LEXIS 2265

• Court: New York Surrogate's Court
• Decided: November 21, 1962
• Status: Published

Opinion

John D. Bennett, S.

The attorney for the unsuccessful contestants applies on the submission of a decree and counter-decree for a fee from the estate and costs and disbursements.

The attorney for a distributee will not generally be awarded a fee from the estate unless there is a clear demonstration that the estate has benefited (Matter of Cannariato, 159 Misc. 409, and cases there cited).

The argument of counsel for the contestants appears to be that the estate has benefited from the contest by enabling the Surrogate to be satisfied with the validity and genuineness of the will. It would seem therefore that the court, not the estate, was benefited. In any event it is clear that the services rendered by the contestants’ attorney were of personal benefit only to the contestants and he must, therefore, look to them for his fee.

The application for a bill of costs and disbursements is denied. There is no authority to allow an unsuccessful contestant any costs from the estate, except the cost of the stenographer’s minutes if the court is satisfied that the contest is made in good faith (Surrogate’s Ct. Act, § 278). This court has previously held that the minutes referred to are those of the trial itself and not the minutes of an examination before trial (Matter of Oswald, 9 Misc 2d 667).