In re the Estate of Rosenberg

241 A.D. 601, 268 N.Y.S. 733

Opinions

Decree of the Surrogate’s Court of Richmond county affirmed, with costs to respondents, payable out of the estate. There is but one item that presents a colorable basis for an allowance to these petitioners on the theory that their activities have benefited the estate. It has relation to the claimed reduction of an allowance to an attorney at the time this court modified a referee’s report recommending such an allowance. The modification was without prejudice to a proceeding under section 231-a. It seems that a settlement was had following the institution of such a proceeding, which resulted in a restoration, for the most part, of the amount excised by this court. To the extent that the restoration was not to the full amount, the surrogate has found that such saving was not sufficiently substantial to warrant an allowance to these petitioners. Such a conclusion may be justified on the theory that many other proceedings, precipitated or necessitated by these petitioners or their clients, have burdened the estate with expense to an amount in excess of the nominal saving accomplished on the item in respect of the lawyer’s fee. (See, also, Matter of Chaves, 143 Misc. 872.) Young, Carswell and Davis, JJ., concur; Lazansky, P. J., with whom Kapper, J., concurs, dissents.