Majority
p. 336Kings County. Surrogate. Hon. W. L. LIVINGSTON, October, 1881. McCue v. O’Hara. In the matter of the probate of the will of Mary O’Hara, deceased.
Headnote
The Surrogate’s court has power, independently of statute or Rule, to allow to the guardian ad litem of an infant party, a reasonable compensation for his services. This power is recognized by the Code of Civil Procedure, and the rules of court (§ 17; rule 50).Section 3558, subd. 3, of that Code, which excepts an infant’s guardian from the prohibition to award costs to an unsuccessful contestant óf a will, does not limit such compensation to the taxable costs.
Motion by Alexander McCue and another, executors, etc., of decedent, to strike from a decree on probate ah allowance to the special guardian of Mary C. O’Hara, an infant party, beyond the amount of taxable costs.
W. N. Dykeman, for the motion.
Thomas E. Pearsall, special guardian for infant.
It is conceded that this court has the power to make an allowance to the guardian ad litem for an infant (Redf. Prac. [2 ed.], 769). The power exists, independently of any express provision of law, or rule of court, but it is recognized by the general rules, which are applicable to all courts of record (Code, § 17; rule 50). The amount allowed is to be a reasonable compensation for the services rendered. Sometimes the taxable costs are given, when they are deemed sufficient; very often a larger amount. It has never been understood that the provisions of the Code, which recognize
p. 337
the right of guardians ad litem to be allowed costs, had the effect of limiting their compensation to the taxable costs. No such construction has ever been given to section 474, which speaks of the costs and expenses allowed to the guardian by the court, and it cannot justly.be claimed for section 2558, subd. 3, which excepts an infant’s guardian from the effect of the prohibition to the court to award costs to an unsuccessful contestant of a will.
The motion is denied.