In re the Judicial Settlement of the Account of Proceedings of United States Trust Co.

241 A.D. 842

Opinion

Decree of the Surrogate’s Court of Westchester county, in so far as it grants allowances to the attorneys for certain respondents, reversed on the law, with costs to the appellants, payable out of the estate, and application therefor denied, without costs. The last paragraph of section 278 of the Surrogate’s Court Act does not empower the surrogate to grant allowances in a proceeding for the construction of a will for services rendered in appellate courts. It only, in a proper case, authorizes allowances for services rendered in the Surrogate’s Court. When the Legislature intended that the surrogate should have such power to make allowances in a decree entered pursuant to an appellate court’s direction, it used apt language to that end such as is contained in the third paragraph of section 278 in respect to a decree of that character entered in a proceeding involving a contested probate. In this latter paragraph it makes specific reference to such an allowance when the decree is entered, after an appeal, pursuant to such a direction. Correspondingly apt language is not contained in the fourth paragraph, which is the only paragraph under which the respondents may claim power in the surrogate to grant allowances herein. Lazansky, P. J., Kapper, Carswell, Scudder and Tompkins, JJ., concur. [149 Misc. 235.]