In re the Last Will of Lamb — 22 N.Y. St. Rep. 351

Majority

p. 351

In the Matter of the Last Will of Thomas Lamb, Deceased.

(Surrogate’s Court, Kings County,

Filed February 28, 1889.)

Headnote

Costs—Who entitled to, in proceedings contesting a will.

The executor propounding a will is entitled to costs in proceedings con

p. 352

testing the will, payable out of the estate. To an unsuccessful contestant who is a special guardian for an infant and to such parties to the proceedings as are successful, costs are in the discretion of the surrogate. The surrogate is without power to award costs in such proceedings to the counsel of an unsuccessful infant party, who intervenes by counsel and not by special guardian.

—The power of the surrogate to award costs in a contested will case, “ payable out of the estate or otherwise,” is limited to the award of costs to the executor propounding the will. To an unsuccessful contestant who is a ■special guardian for an infant, and to such parties to the proceeding as are successful—under the above limitations costs are in the discretion of the surrogate.

Mr. Tighe is not a special guardian for an infant, and ■represents an unsuccessful contestant. I am of the opinion that the surrogate is without jurisdiction to award costs to him payable out of the estate or otherwise. He must look to the estate of his ward for compensation.

I am also of the opinion that the surrogate has nó jurisdiction to award costs to Mr. Cothran, who represents the infant, Thomas M. Lamb, a grandchild of testator, as counsel only. The infant intervened in the proceeding, but no .special guardian was appointed for him. The utmost I ■could do would be to award costs to his special guardian, but there being none, I am unable to see how any costs can be awarded to Mr. Cothran, his counsel.

The executors are clearly entitled to costs. The affidavit ■filed by counsel for the executors shows that the trial, or hearing upon the merits, before the surrogate, occupied thirty-one (31) days; deducting two days there remains twenty-nine (29) days at ten dollars a day—two hundred and ninety dollars; add seventy dollars costs and the total is $360, which sum I hereby allow to the executors for their ■costs, to be paid out of the estate.