Foley, S.
This is a proceeding brought under section 231-a of the Surrogate’s Court Act. It was initiated by three petitioning attorneys who represented next of kin and distributees of the estate of Michael Winburn who are entitled to take three-eighteenths of the intestate property. Dispute arose in the probate proceeding as to the construction of the will. The will was admitted and the question of construction reserved for determination by supplemental decree. The surrogate determined that the testator by its terms had made a valid and complete disposition of his entire estate. The Appellate Division affirmed. The Court of Appeals reversed and held that one-half of the residue, except two legacies, passed by intestacy to the next of kin and distributees. (Matter of Winburn, 265 N. Y. 366; motion for reargument and to amend the remittitur denied, 266 id. 501; further motion to amend the remittitur denied, [51]*51270 id. 196.) The intestate fund amounts to approximately $1,000,000.
No controversy has arisen or exists as between the petitioning attorneys and their own clients. The petitioning attorneys, however, now claim that they are entitled to payment out of the estate generally or out of the intestate fund or out of the shares of those next of kin not represented by them who obtained a financial benefit by reason of the decisions of the Court of Appeals. Out of the general group of distributees only their clients took the appeal from the Appellate Division to the Court of Appeals. The remaining next of kin participated as parties and respondents on that appeal. (270 N. Y. 196.)
The application is denied in the exercise of the discretion of the surrogate and as a matter of law. The petitioning attorneys and their distinguished counsel admittedly rendered effective services in obtaining ultimate success, but neither the circumstances of the case nor a reasonable construction of the provisions of section 231-a of the Surrogate’s Court Act justify the making of the allowance which they seek. They say their services are worth $100,000. Under their agreements with their own clients they have become entitled to the payment of approximately $15,000. Their retainers with certain of these clients called for the payment of seven and one-half per cent of the amount ultimately recovered. As to the others, the retainer provided that ten per cent was to be the measure of compensation. They apparently seek to apply the latter percentage rate as against the shares of the distributees whom they did not represent in either this court or in the appellate courts.
There is some indication on the part of the petitioners of a claim that they were “ requested ” to carry the case to the Court of Appeals by distributees not directly represented by them. I find as a fact that no agreement to represent such other distributees was ever made.
All of these distributees were represented by their own attorneys. They were the widow of the decedent, and subsequently the legal representative of her estate, the decedent’s two sisters, his brother and a further class of nephews and nieces. Each of these various distributees will be required to pay his or her own attorney. In some cases the charge of the attorney directly representing the distributee was based upon a contingent agreement for the payment of fifty per cent of the amount ultimately obtained for the client. In the case of the two sisters of the decedent, who were the life tenants of the trusts declared to be ineffective and void by the Court of Appeals, they have actually suffered a serious financial loss by reason of the efforts of the petitioning attorneys [52] and the final determination of intestacy. Thus as to one sister, the pecuniary value of her interest under the will was $150,000 and by intestacy $50,000, a loss to her of $100,000. The pecuniary interest of the other sister was reduced by the determination of intestacy from $200,000 to $50,000 or a loss of $150,000. To attempt to charge these two distributees with any part of the fee claimed by the petitioners would be manifestly unjust. If the matter, therefore, was to be determined as one solely of discretion, the surrogate, under the special facts and circumstances, would not exercise his discretion in making any allowances whatsoever either out of the general estate or out of the intestate fund or out of the shares of the respective distributees whom the petitioners did not represent.
In addition, I am of the opinion that a reasonable interpretation of the legislative intent in the enactment of section 231-a of the Surrogate's Court Act requires a denial of the application as a matter of law. That section was drafted in its original form and recommended for passage to the Legislature by former Presiding Justice Dowling of the Appellate Division, First Department, and by the writer of this decision. It was intended to provide an expeditious, simple and effective remedy for determining all sorts of disputes between an attorney and the representative of an estate, and an attorney and his client, whether legatee, beneficiary or distributee by intestacy. Protection was intended to be afforded to the attorney and the rights of the beneficiaries or client were to be equally safeguarded by the court. The terms of the section contemplated three varying sources of payment of the reasonable value or agreed compensation when judicially determined: (1) to the attorney for the representative of the estate, payment was to be directed to be made out of the general estate; (2) to the attorney for a legatee, life tenant, remainderman or distributee by intestacy, payment was to be directed to be made out of the respective share or interest of the client; (3) in extraordinary and exceptional cases where an attorney for one of the persons interested had rendered services which resulted to the benefit of the general estate, payment might be directed to be made by the surrogate out of the general estate.
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Foley, S.
This is a proceeding brought under section 231-a of the Surrogate’s Court Act. It was initiated by three petitioning attorneys who represented next of kin and distributees of the estate of Michael Winburn who are entitled to take three-eighteenths of the intestate property. Dispute arose in the probate proceeding as to the construction of the will. The will was admitted and the question of construction reserved for determination by supplemental decree. The surrogate determined that the testator by its terms had made a valid and complete disposition of his entire estate. The Appellate Division affirmed. The Court of Appeals reversed and held that one-half of the residue, except two legacies, passed by intestacy to the next of kin and distributees. (Matter of Winburn, 265 N. Y. 366; motion for reargument and to amend the remittitur denied, 266 id. 501; further motion to amend the remittitur denied, [51]*51270 id. 196.) The intestate fund amounts to approximately $1,000,000.
No controversy has arisen or exists as between the petitioning attorneys and their own clients. The petitioning attorneys, however, now claim that they are entitled to payment out of the estate generally or out of the intestate fund or out of the shares of those next of kin not represented by them who obtained a financial benefit by reason of the decisions of the Court of Appeals. Out of the general group of distributees only their clients took the appeal from the Appellate Division to the Court of Appeals. The remaining next of kin participated as parties and respondents on that appeal. (270 N. Y. 196.)
The application is denied in the exercise of the discretion of the surrogate and as a matter of law. The petitioning attorneys and their distinguished counsel admittedly rendered effective services in obtaining ultimate success, but neither the circumstances of the case nor a reasonable construction of the provisions of section 231-a of the Surrogate’s Court Act justify the making of the allowance which they seek. They say their services are worth $100,000. Under their agreements with their own clients they have become entitled to the payment of approximately $15,000. Their retainers with certain of these clients called for the payment of seven and one-half per cent of the amount ultimately recovered. As to the others, the retainer provided that ten per cent was to be the measure of compensation. They apparently seek to apply the latter percentage rate as against the shares of the distributees whom they did not represent in either this court or in the appellate courts.
There is some indication on the part of the petitioners of a claim that they were “ requested ” to carry the case to the Court of Appeals by distributees not directly represented by them. I find as a fact that no agreement to represent such other distributees was ever made.
All of these distributees were represented by their own attorneys. They were the widow of the decedent, and subsequently the legal representative of her estate, the decedent’s two sisters, his brother and a further class of nephews and nieces. Each of these various distributees will be required to pay his or her own attorney. In some cases the charge of the attorney directly representing the distributee was based upon a contingent agreement for the payment of fifty per cent of the amount ultimately obtained for the client. In the case of the two sisters of the decedent, who were the life tenants of the trusts declared to be ineffective and void by the Court of Appeals, they have actually suffered a serious financial loss by reason of the efforts of the petitioning attorneys [52] and the final determination of intestacy. Thus as to one sister, the pecuniary value of her interest under the will was $150,000 and by intestacy $50,000, a loss to her of $100,000. The pecuniary interest of the other sister was reduced by the determination of intestacy from $200,000 to $50,000 or a loss of $150,000. To attempt to charge these two distributees with any part of the fee claimed by the petitioners would be manifestly unjust. If the matter, therefore, was to be determined as one solely of discretion, the surrogate, under the special facts and circumstances, would not exercise his discretion in making any allowances whatsoever either out of the general estate or out of the intestate fund or out of the shares of the respective distributees whom the petitioners did not represent.
In addition, I am of the opinion that a reasonable interpretation of the legislative intent in the enactment of section 231-a of the Surrogate's Court Act requires a denial of the application as a matter of law. That section was drafted in its original form and recommended for passage to the Legislature by former Presiding Justice Dowling of the Appellate Division, First Department, and by the writer of this decision. It was intended to provide an expeditious, simple and effective remedy for determining all sorts of disputes between an attorney and the representative of an estate, and an attorney and his client, whether legatee, beneficiary or distributee by intestacy. Protection was intended to be afforded to the attorney and the rights of the beneficiaries or client were to be equally safeguarded by the court. The terms of the section contemplated three varying sources of payment of the reasonable value or agreed compensation when judicially determined: (1) to the attorney for the representative of the estate, payment was to be directed to be made out of the general estate; (2) to the attorney for a legatee, life tenant, remainderman or distributee by intestacy, payment was to be directed to be made out of the respective share or interest of the client; (3) in extraordinary and exceptional cases where an attorney for one of the persons interested had rendered services which resulted to the benefit of the general estate, payment might be directed to be made by the surrogate out of the general estate.
In my decision in Matter of Parsons (121 Misc. 747; affd. on opinion below, 208 App. Div, 769), rendered shortly after the enactment of this section, I explained its general purpose. The Court of Appeals has traced the prior jurisdiction of the Surrogate’s Court to fix the compensation of attorneys and the effect of the new section in Matter of Matheson (265 N. Y. 81) and Matter of Proctor (267 id. 109). In Matter of Parsons (supra), I also referred to the exceptional case mentioned in paragraph 3 above. [53] I indicated, by way of dictum, that an allowance to an attorney for a beneficiary who had rendered services resulting in advantage to the estate by a surcharge of the executor, administrator or other legal representative, might properly be charged against and paid from “ the estate generally ” under the language of section 231-a. In Matter of Lounsberry (226 App. Div. 291) certain legatees, representing a portion of the estate, brought a discovery proceeding through their attorney to compel a daughter of the decedent to restore specific assets. They were successful. Through their efforts the general estate and other beneficiaries profited. The court held that the reasonable value of the services of their attorney should be charged out of the general estate under the terms of section 231-a. (See, also, Matter of Vorndran, 132 Misc. 611; Matter of Rosenberg, 147 id. 517; affd., 241 App. Div. 601; Matter of Hirsch, 154 Misc. 736.) But under these authorities there must be a finding that the estate generally has been benefited before payment out of the estate may be decreed. (Matter of Chaves, 143 Misc. 872; Matter of Conne, 147 id. 116.)
There is not the slightest indication, however, in the context of the section of any legislative intent that the charges of the attorney for one individual party, whether legatee or distributee, should be paid out of the shares of other individual parties. Such is the situation here. No funds were brought back into the estate as in a surcharge case. The dispute only arose as to testacy or intestacy.
The Surrogate’s Court is without power to make allowances excepting when expressly authorized by statute. In 1925 section 278 of the Surrogate’s Court Act was amended so as to permit the making of allowances for counsel fees for services upon an appeal rendered to an executor, administrator, guardian or trustee. No authority whatsoever existed for the making of allowances to attorneys for a party, other than an executor, administrator, guardian or trustee, in a proceeding involving the construction of a will until the enactment of the amendment made in 1928 to section 278. Thereafter, allowances might be made in proceedings involving construction, but only for services of an attorney rendered in the Surrogate’s Court. None might be made for services rendered in the appellate courts. (Matter of Watson, 241 App. Div. 842; affd., 264 N. Y. 697; Matter of Lydig, 149 Misc. 598.)
Finally, in 1935,