In re Reeves — 1 N.Y.S. 17

Majority

p. 17

In re Reeves.

(Supreme Court, General Term, First Department.

May 18, 1888.)

Headnote

Executors and Administrators—Allowance oe Counsel Fees—Examination by Surrogate.

Under Code Civil Proc. ÍT. T. §§ 2561, 2562, giving the surrogate discretion to allow to an executor such sum for counsel fees as he may deem reasonable, the surrogate may require an executor to appear and submit to a cross-examination as to his bill of costs, which, in charging for 104 days of service in settling an estate neither large nor complicated, excites the suspicion of the surrogate.

Appeal from surrogate’s court, Hew York county.

In the matter of the final accounting of Robert C. Beeves, executor, etc., of the estate of Abraham Denike, deceased. Appeal by the executor from the summons or direction of the surrogate requiring him to appear and submit to a cross-examination as to the items of his bill of costs. Code Civil Proc. § 2562, provides that “the surrogate may, in his discretion, allow to an executor, administrator, guardian, or testamentary trustee, upon a judicial settlement of his account, or on an intermediate accounting required by the surrogate, such a sum as the surrogate deems reasonable, for his counsel fees and other expenses, not exceeding ten dollars for each day occupied in the trial, and necessarily occupied in preparing his account for settlement, and otherwise preparing for the trial.”

Argued before Van Brunt, P. J., and Bartlett and Daniels, JJ.

Henry W. Bates, for appellant. J. H. Morris, for residuary legatees, etc.

In the bill of costs of the attorney and counsel for the executor, he has charged for 106 days, less 2 and adjournments not specified, for time occupied in the trial or hearing upon the settlement of the executor’s accounts, in preparing such accounts, and preparing for the trial or hearing. The estate was neither large nor complicated, and these charge's must necessarily have excited the suspicion and incredulity of the surrogate. Whether they should be allowed or not, to a very great extent, depended upon the exercise of his discretion, as that has been regulated under sections 2561, 2562, Code Civil Proc.; and to guide him judiciously in the exercise of that authority, he required information which could naturally be obtained, if it was accessible, from the attorney, concerning the foundation and justice of these charges. He might, in his discretion, have disallowed them entirely, so far as no absolute legal right existed for sustaining them, or he might, to secure

p. 18

additional information, have required a minute and circumstantial affidavit from the attorney, and, in the judicious exercise of the same authority, no good reason seems to stand in the way to prevent the surrogate from requiring the attorney, as he did, to appear and submit to an oral examination concerning the correctness and justice of these charges. The information to guide the judgment of the surrogate appeared to be necessary under the circumstances; and, in the discharge of his duties, he had the right and authority to require its production in one form or another, and it was for him to determine and decide which would be the most satisfactory or best form to furnish the information it was necessary to obtain. He adopted the course of requiring the attorney to appear and submit to an oral examination concerning these charges. Ho possible injustice could be done to the attorney by prescribing that course. On the contrary, if the charges are just, it afforded him the means of exhibiting them to be of that description. It was in his interest, as much as that of the estate, that the summons or the order was made by the surrogate; and ample incidental authority exists in that officer to require as much as this of the attorney (counsel) claiming these allowances. Without, therefore, considering whether this was such an order as the executor could appeal from, it is sufficient to say that it was rightly made, and it should be affirmed, with $10 costs, to be paid by the executor and the attorney personally.