Rollwagen v. Powell

15 N.Y. Sup. Ct. 210

• Court: New York Supreme Court
• Decided: July 15, 1876
• Status: Published

Opinions

Beady, J.:

The examination of the widow as to her condition having been necessary, and all the parties to the action having consented to an order therefoi’, Messrs. Powell and Purdy, who are physicians, were duly appointed to attend upon and examine her, in conjunction with her family physician. It was also provided by the order that their compensation should be allowed as a charge against the estate of Frederick Rollwagen, deceased. The respondents, Powell and Purdy, did what they were required to do, and in all respects complied with the order of the court appointing them. This having been done, they applied for compensation, and gave due notice of that proceeding to all the parties in the action, and to William A. Seaver, Esq., who was then the special administrator of the estate, and upon that application, by consent of all the parties to the action, the matter was referred to William A. Duer, Esq., to take the necessary proofs and report the same to the court with his opinion thereon. Due notice of the proceedings before him was given to all the parties in the action, the proofs were taken, and the report filed and confirmed after due notice to all the parties interested. It was also adjudged and decreed, by order of confirmation, that the sums named should be a lien and a charge upon the estate and paid out of it, the rents or income and profits thereof. All this was done before the 15th March, 1875, except the making and filing of the report of Mr. Duer, which bears date the 20th March, 1875. The respondents Powell and Purdy had, therefore, been selected, had discharged their duties, and their compensation, whatever it might be, had, by virtue of the order appointing them, become a charge upon the estate of Frederick Rollwagen. There was no appeal taken either from that or the subsequent order confirming the referee’s report, and the latter order, so far as it decreed the payment of the compensation out of the estate, was only a continuation of the first oi’der which declared that it should be a charge thereupon. On the 15th March, 1875, the action in which the orders were made was discontinued by order of the court, but no notice of such proceeding was given to the respondents Powell and Purdy, and it does not appear that the court was then advised of the outstanding claim of the respondents Powell and Purdy, or of the proceeding then pending to ascertain its effect. It is, on the contrary, quite evident that the matter was not revealed, and there is no'pretense that it was. The respondents Powell and Purdy having been selected, by order of this court, for an investigation in a proceeding which has for centuries formed a part of the jurisprudence of England (see Ex parte Aiscough, 2 P. Williams, 591; Ex parte Bellett, 7 Cox, 297; Coke Litt., 8 C.; also, article in Daily Register Jan. 29, 30, 31, 1874, where cases are collated), became quasi officers of the court, clothed with extraordinary powers, and invested -with duties of a high and delicate character, requiring vigilance, promptness, and ability. It was not intended that they should be dependent upon the contingency of an action for their compensation, and hence it was made a charge, in anticipation, upon the estate. This was done by consent of all the parties on which the order was founded. They became, therefore, quasi parties to the action in whose favor a decree had been entered, and the discontinuance as to them was therefore a nullity, inasmuch as they were not notified of the proceeding by which it was accomplished. It was determined in favor of the respondents Powell and Purdy that they should be paid the amount awarded, and they had a judgment therefor against the estate, its income and profits. The power of the surrogate to decree the payment of such a demand may be questionable, because it was not a debt or demand against the testator, or against the executor or personal representative, and it is over such demands only that the surrogate possesses the limited powers given by statute. Debts created by act of the testator or intestate, or his executor or administrator. (Redfield on Surrogates, pp. 21, 306, and cases cited.) The demand of the respondents Powell and Purdy was not a debt created by either of these persons, but a charge made by order of the court, which was, in effect, an appropriation of the estate pro tanto to its payment. The order of the surrogate was proper doubtless, as matter of form, to reach the funds of the estate in the hands of the special administrator appointed by him, although this court could have ordered its payment directly out of the funds in the hands of the special administrator. At all events no harm has heen done, predicated as it was of a decree of this court. The service ordered by this court, and to which it related, was necessary in the administration of justice, and one the expenses of which, like the appointment of a receiver or special administrator, should be paid out of the estate, because the result related to the whole and not to a portion of it, and was important. If the widow were, in other words, pregnant, and a child were born alive, it would increase the number of heirs and diminish the share of each. All were interested in the proceeding, therefore, and each should contribute to the expense. Assuming the respondents Powell and Purdy to be quasi officers of the court, and placing them upon the same plane with receivers, they should be paid out of the common fund, and such was the order in this case. Granting the position suggested, the discontinuance would not affect them, because the receiver could not be prejudiced by such a proceeding as to his allowances, whether the funds were in his hands or on deposit to the credit of the action.

Por these reasons the order appealed from should be affirmed, but without costs.

The questions considered are novel, and diligent search has failed to reveal adjudications in which they have been considered or passed upon. The counsel and the court have labored in vain, it would seem, on the subject.

Ordered as declared. Order to be settled by Beady, J.

Davis, P. J., concurred.