In re Lockman — 4 Abb. N. Cas. 173

Majority

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MATTER OF LOCKMAN.

N. Y. Surrogate's Court;

May, 1878.

Headnote

Accounting of Executors and Administrators.—Allowances by Surrogate to Attorneys.—Appointment op Special Guardians op Inpants.—General Guardians.

In proceedings before a surrogate of Mew York county, he may, under L. 1870, c. 359, grant allowances to the attorneys instead of to the parties.

The provisions of L. 1870, c. 359, in regard to the amount of allowance to be granted, only fixed the maximum limit to the amount which may be allowed, and prescribed the process by which that amount may be arrived at.

Where several attorneys represented the interests of one infant in a proceeding before the surrogate of Mew York county,—Held, that only one allowance should be granted to all, and the amount should be properly apportioned among them.

It seems, that the general guardian of an infant’s estate may represent its estate on an accounting before such surrogate, as properly and fully as a special guardian.

But although an infant has a general guardian, and a special guardian is appointed in an accounting of the executors before the surrogate, in the supposed safety of the proceedings and the estate, the allowance to the special guardian, as well as to the attorneys for the general guardian, should be paid out of the estate, when the other allowances are to be charged to the same.

If, on a final accounting of an executor or administrator, minors are cited, it is imperative that special guardians of such minors should be appointed, or the surrogate’s court will have no jurisdiction over such minors, except for service of the citation.

Motion to settle surrogate’s decree on final accounting of an executor.

This -motion was made on the final accounting of Jacob K. Lockman, executor, &c.,of Charles E. Carman, deceased, who died in September, 1876.

The said Charles E. Carman left a large estate to be equally divided, upon the death of Caroline E. Carman, between his two children Lucene Gunning, a daughter,

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wife of W. Jessup Gunning, and Bichard F. Carman, a son, who was a minor. The said children were also entitled to several hundred thousand dollars from the estate of their grandfather, Bichard F. Carman.

Soon after the death of Charles E. Carman, his former wife, Bebecca B. Carman, who had obtained a divorce from him- several years before his death, was appointed guardian of the person of the infant Bichard F. Carman, and the United States Trust Company of the City of New York and the Union Trust Company of the City of New York were appointed guardians of the estate of said infant, each to receive and have the care and custody of one half portion thereof. W. A. W. Stewart, Esq., was also appointed his special guardian, he having no general guardian eo nomine.

Upon the final accounting of the executor a special guardian was also appointed for four infant creditors whose funds were by the decree directed to remain in the hands of the executor until their general guardian-should be appointed.

Other material facts sufficiently appear in the opinion.

George G. Kip, for executor.

Elbridge T. Gerry, for Lucene Gunning.

Charles E. Whitehead, for Union Trust Company.

W. A. W. Stewart, for the United States Trust Company and as special guardian of Richard F. Carman.

J. F. Harrison, for Mrs. Caroline Carman.

F. F. Van Derveer, special guardian of the four infant creditors.

This is an application to settle the decree herein, and the allowances to the respective attorneys ; and the counsel for Mrs. Gunning objects

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to any allowance to the attorneys as such, but claims that it should be made to the party as by the Code, and that the allowance to be made, if made to the attorneys representing the guardian of the infant, Richard F. Car-man, should be but one allowance, as though the infant, was represented by but one guardian and one attorney; and that no allowance should be made to the special guardian, because his appointment was unnecessary, the trust companies being the*guardians of the infant’s estate ; and that whatever sum shall be allowed should be charged upon the interest of the infant and not upon the body of the estate.

Chapter 359, section 9, of the laws of 1870, specially applicable to this court, reads as follows: “The surrogate of said county may grant allowances, in lieu of costs, to counsel, in any proceeding before him, in the same manner as are now prescribed by the Code of Procedure in civil actions.” By 3 R. S. 330, 6 ed., section 25, it is provided that “ in all cases of contest before a surrogate’s court, such court may award costs to the party in the judgment of the court entitled thereto, to be paid either by the other party personally, or out of the estate which shall be the subject of such controversy.”

In Noyes v. Children’s Aid Society, 3 Abb New Cas. 36, the court of appeals held that this section authorized the surrogate to award costs to all the parties. The same case held that by the act of 1870, whenever the surrogate’s court might award costs, by the revised statutes, it might give an allowance to counsel instead of costs to the party. By the use of the word counsel, I have no doubt attorneys by whom parties appear is meant, as such appearance is provided for by section 2 of the same act. I am quite clear that the allowances may be made to all the attorneys instead of to the parties. In the case above cited it was also held that the expression in the act of 1870, “in the same manner as

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are now prescribed by the Code of Procedure in civil actions,” only fixed the maximum limit to the amount which may be allowed, and prescribed the process by which that amount may be arrived at. It must be quite evident that “in the same manner” could not have been used as equivalent to “in the same cases or to the same parties,” for the same section provides for such allowance to counsel instead of party, and “in any proceeding.” This latter expression was doubtless used so as to cover cases where no contest is had, and as an enlargement of the scope of section 25 of 3 R. S. above cited, as well as to include as many proceedings as may be had. "

I am quite clear that but one reasonable allowance should be made to the attorneys representing the interest of the infant Richard P. Carman, and that the amount should be properly apportioned. It certainly does not seem to be right that the interest of one infant should be represented by three separate attorneys at the expense of other parties, or even at its expense. It is presumed, however, that the special guardian was appointed at the suggestion of the executors, representing all parties interested in the estate as legatees, for abundant caution ; though I am not able to see any good reason why a general guardian of an infant’s estate may not represent its estate on such an accounting quite as properly and fully as a special guardian may do. But I am of the opinion that, as neither the infant nor special guardian are chargeable for the appointment, and it was made in the supposed safety of the proceedings and the estate, the allowance to the special guardian, as well as to the attorneys for the general guardians of the infant Richard F. Carman, should be paid out of the body of the estate, so long as the other allowances are to be charged to the same.

The counsel for Mrs. Gunning further objects to any allowance whatever being made to a special guardian,

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who was appointed at the instance of the executor on this accounting to represent four infant creditors of the estate. He insists that, as the decree can only provide that the moneys due these infants be kept invested by the executor until a general guardian be appointed to whom the moneys could be paid, the appointment of a special guardian was wholly unnecessary, did not affect the disposition of the fund, and ought not to subject the estate to expense.

If an executor or administrator desires his account finally settled, he may apply to the surrogate for a citation, requiring the creditors and next of kin of the deceased and the legatees if there be any to appear, &c. (3 R. S. 101, § 73, 6th ed.). Section 75 (Id.) provides that minors shall be served with citation, and special guardians appointed. It is therefore clear that for the purpose of this accounting the minors must have been cited and served, and a special guardian appointed, and without it the executors could not do their duty, or get their discharge. Suppose the estate had been insufficient to pay all the claims, and the minors had not been made parties, and a due proportion of' their claim had been ordered deposited or retained, the account would not have been final, and the minors, by their guardian before their majority, and after by themselves, might open the decree and accounting and contest it, alleging that the amount deposited or ordered distributed was too small. But aside from this consideration there can be no final accounting without citing the parties interested. And the failure to appoint a special guardian for a minor fails to give the court jurisdiction over such minor for any purpose except service of the citation. I am of the opinion that the appointment of the special guardian was not only proper but imperative.