
    
      In re Byron’s Will.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 23, 1891.)
    Wills—Contest—Costs oe Stenoueapheb’s Minutes—Allowance to Contestants.
    Under Code Civil Proo. § 2558, declaring that on the contest of a will “the surrogate may order a copy of the stenographer’s minutes to be furnished to the contestants’ counsel, and charge the expense thereof to the estate, ” the application for such order must precede the furnishing of the minutes, to entitle contestants to an allowance for the expense incurred in procuring them.
    Appeal from surrogate's court, Brie county.
    On a contest of the will of Henry H. Byron, deceased, a judgment was rendered for proponents. The contestants, having unsuccessfully opposed probate, moved for an order directing proponents to pay them out of the estate the sum expended by them in procuring for use on the appeal a copy of the stenographer’s minutes of the evidence. The order was granted, and proponents appeal.
    Beversed.
    Argued before Dwight, P. J., and Lewis and Macomber, JJ.
    
      Hosea S. Heath, for appellants. J. M. Humphrey, for respondents.
   Lewis, J.

There was a contest in the surrogate’s court of Brie county over the probate of the will of Henry H. Byron, deceased. A decree was entered on the 10th day of September, 1890, admitting the will to probate. It was directed by the decree that the question of the costs be reserved to be determined by the further decree of the surrogate’s court. A motion was thereafter made by the contestants to be allowed as disbursements the sum of $456.80, paid for a copy of the stenographer’s minutes of the evidence taken upon the trial. They presented upon the motion affidavits showing that by direction of their counsel they procured of the official stenographer of the surrogate’s court a copy of the minutes of testimony, and that Byron paid the sum named therefor. No order was obtained prior to the furnishing of the minutes, directing them to be furnished to the contestants. The proponents opposed the motion, and their affidavits show that they had procured .a part of the stenographer’s minutes for use upon the trial at an expense of $332, and had them at the time the contestants procured their copy.

This appeal is upon a question of law, and not from a decree rendered upon the trial by the surrogate of an issue of fact, and the case required by section 2576 of the Code of Civil Procedure was not necessary. The practice suggested in Bedfleld’s Law and Practice in Surrogates’ Courts wasfollowed, and we think correctly. All the papers are before us upon which the surrogate acted in making the supplementary decree appealed from. Section 2558 of the Code of Civil Procedure provides that “the surrogate may order a copy of the stenographer’s minutes to be furnished to the contestants’ counsel and charge the expense thereof to the estate, if he shall be satisfied that the contest is made in good faith.” The contestants, having been unsuccessful in the litigation, were not entitled to any costs. They were not entitled, at the expense of the estate, to reimbursement for moneys they may have paid for minutes of testimony without an order of the surrogate’s court. The court being one of limited jurisdiction, its power to grant the order was derived from the section of the Code mentioned; and that section, it will be seen, contemplates that the application for the order shall precede the furnishing of the minutes. The proponents were entitled to notice of such application. In re Budlong's Will, 33 Hun, 235. Had the application been made before the minutes were furnished, it would have been made to appear to the surrogate that his official stenographer had already furnished a copy of most of the testimony to the proponents, for which he had charged them the sum of $332. An investigation would have undoubtedly shown that the stenographer, when he made the copy for the appellants, took a duplicate impression, and had on hand an extra copy of the evidence. It would have afforded the appellants an opportunity to loan to the contestants their copy of the evidence, and thereby save the expense of another copy.

This case very aptly illustrates the propriety of the provision of the Code requiring that the application for the order should precede the furnishing of the minutes. The course pursued gave to the stenographer an opportunity to secure $456.80 for an exceedingly small outlay on his part. If properly regulated, the services of a stenographer probably facilitate the business of our courts. They at least conduce to correctness, but, unless a careful supervision is exercised over them by the courts, their charges become exceedingly burdensome to the litigants. If this order is allowed to stand, there will be taken out of this estate, for the work of a mere clerk in copying the minutes of the trial, $788.80. The stenographer of the surrogate’s court receives a salary for taking the original minutes. We are not advised as to the value of this estate, but, assuming it to be an average estate, the stenographer’s charges would make a serious inroad into the accumulations of the testator. The moving affidavits show that Byron paid the $456.80 to the stenographer. The order provides that one-half thereof shall be paid by the executors to him, and the other half to the guardian of Maude Kirby. Why the guardian should receive a portion of the sum paid by Byron does not appear. We think that the true construction of section 2558 requires that the order should precede the furnishing of the minutes, and that the surrogate had no power to grant the order appealed from. That part of the supplementary decree directing the executors to pay the contestants out of the funds of the estate the amount paid to the stenographer should be reversed, with costs.

All concur.  