
    Estate of Henry C. Bull, Dec’d.
    
      (Surrogate’s Court, New York County,
    
    
      Filed February 18, 1889.)
    
    1 Executors and administrators—Probate of will—When, executor.
    ALLOWED COSTS IN PROBATE PROCEEDINGS—COUNSEL FEES.
    When an executor and proponent of a will having in good faith carried' ■ on proceedings to procure the probate of the will, although unsuccessful, he is to be allowed his costs for the proceedings in this court, although it was decided he was not entitled to costs in the appellate court. He is also entitled to a pen' diem allowance for counsel fee for services in taking testimony under a commission out the state.
    3. Same—Counsel fees abroad upon execution of commission—When
    ALLOWED.
    In a common law proceeding, counsel fees abroad, upon execution of a commission, cannot be taxed as a disbursement; even if the attorney of record had gone abroad and attended personally to the taking of the testimony on commission, he would have been entitled to no allowance-therefor. A different rule prevails in this court. Here he would be entitled to a per diem, allowance, as in the case of a trial within this jurisdiction.
    3. Same—Costs of a jury trial—Difference in allowance in New York and other counties—Code Crv. Pro., § 3560.
    There is a difference between the method in which costs of a jury trial in probate cases are awarded in the county of New York and in the other-counties of the state. In this county in a probate proceeding, the costs to-be awarded on a jury trial would be the costs on contest, seventy dollars, and the days occupied in the trial, less two days, besides motion for a new trial. But in other counties of the state the costs of a jury trial, where it-may be had in such a proceeding under section 3560 of the Code, would be the same as the taxable costs of an action in the supreme court, viz., costs before notice, costs after notice and before trial, and term fees.
    
      Hoppin & Talbot, for contestants; Weckes & Foster, for proponent.
   Ransom, S.

—This was a proceeding for the probate of the will of decedent. It was transferred to the court of common pleas by order of Judge Rollins, and was tried before Judge Van Hoesen and a jury. Upon the questions which the jury were asked to answer specifically, they returned a verdict in the negative as to the competency of the testator, and his knowledge of the contents of the instrument. Upon the questions of formalities of execution, and the absence of undue influence or restraint, they returned answers in the affirmative. The general verdict was in favor of the contestants.

At the close of the trial, application was made to the court for an allowance, but the- judge decided that with that matter he had nothing to do.

An appeal was taken to the general term, and the verdict was sustained, with cost of appeal to respondents.

Upon appeal to the court of appeals a like judgment was rendered, the order as to costs being the same.

A remittitur was filed, and the verdict and proceedings certified to this court.

Proposed decree has been submitted, which has been duly noticed for settlement. Costs are applied for by the proponent, contestants and special guardian.

The allowance claimed by the proponent’s attorney is opposed both by the special guardian and by the contestants, upon the ground that there being no direction by the appellate tribunal with reference to the allowance of costs to the proponent, they must be disallowed; and, inasmuch as he was an unsuccessful party upon the trial before the jury, costs there can not be allowed to him.

The allowance of costs to the proponent is likewise opposed upon the ground that the proceeding was not conducted by him in good faith. The executor presenting the will for probate was the draftsman of the will, and went from New York city to Bunker Hill, Illinois, for the purpose of procuring its execution.

A most important fact in connection with the question of good faith is that Judge Van- Hoesen, upon the motion for a new trial upon the judge’s minutes, in reserving that matter for the action, in the first instance, of the general term, stated that if it had been a matter before him at special term he would have found in favor of the will propounded; but twelve men having come to a different conclusion, he would not overrule their verdict. Upon the question of good faith, therefore, I think the executor is sustained.

There is a difference between the method in which costs of a jury trial in probate cases are awarded in the county of New York and in other counties of the state. By section 2558, it is provided that when a question of fact has been tried by a jury, the decree must award costs to the successful party, unless it is within the previous subdivision, which refers to special directions with reference to costs contained in a judgment made by an appellate tribunal.

Under section 2547, the amendment of 1886, which relates exclusively to proceedings in New York county, it is provided that the costs of the jury trial, when ordered, shall be taxed in the surrogate’s court, and shall be awarded in the same manner as if the proceedings had been heard by the surrogate.

In this* county, consequently, in' a probate proceeding, the costs to be awarded in a jury trial would be the costs on contest, seventy dollars, and the days occupied in the trial, less two days, besides motion for new trial; whereas, in other counties of the state, the costs of a jury trial, where it may be had in such a proceeding, under section 2560, would be the same as the taxable costs of an action in the supreme court, viz., costs before notice, costs after notice and before trial, and trial and term fees.

The direction contained in the orders at general term and court of appeals exclude the executor from any allowance in those courts, but he is allowed his costs and disbursements for proceedings in this court.

Assuming that the surrogate will allow costs to the proponent in the manner indicated above, objection is made to the disbursements in the bill of costs proposed by him to the item “services to lawyer at Bunker Hill, $200.” In this connection a very important fact to be considered is that the bulk of the testimony, including that of the subscribing witnesses, was taken in Illinois, where the will was made and the testator died. The proponent sought a commission on written interrogatories, which was denied, and an open commission issued. While in a common-law action it has been held (in the case of Dunham v. Sherman, 11 Abb., 152) that counsel fees abroad upon execution of a commission cannot be taxed as a disbursement, it is apparent that a different rule should prevail in this court.

In a common law action if the attorney of record had gone abroad and attended personally to the taking of testimony on commission, he would have been entitled to no allowance therefor, whereas, in this court he would be entitled to a per diem allowance as in a case of a trial within this jurisdiction. I think the proponent is entitled to the per diem allowance for such counsel fee, the same as if his attorney here had attended upon the execution of the commission; the number of days to be fixed by an affidavit to be furnished.

All costs and disbursements necessary for the purpose of appeal, such as printing the case and points, should be disallowed to the proponent. The item of 'stenographer’s fees, amounting to $134.50, should be allowed if the minutes were required for the purpose of conducting the trial from day to day — which is hardly possible, in view of the fact that most of the testimony consisted of a simple reading of the commission. If ordered, for the purpose of preparing the case upon appeal, they are not in my opinion allowable.

It will be noticed in this proceeding that the special guardian filed no objections. The decree or judgment of the general term and court of appeals do not provide compensation for him. In fact, it does not appear that a special guardian or guardian ad litem was ever appointed for the purpose of conducting the proceedings in the appellate tribunal.

“If the interests of an infant need protection in proceedings upon appeal from the surrogate, it is the province of the appellate court to appoint for that purpose a guardian ad litem. Schell v. Hewitt, 1 Dem., 250.

It does not appear that he acted as such guardian ad litem in the appeal proceedings, by way of the preparation of a brief or argument. He claims an allowance for days occupied in attendance at the general term, but makes no such claim for attendance at the court of appeals. In the absence of a direction from the appellate tribunal, with reference to his compensation, the surrogate has no power to make any provision therefor. Schell v. Hewitt (supra). See, also, Matter of Hatten, 6 Dem., 444; Matter of Odell, Sur. Dec., 1888, p. 301; Matter of Vandervoort, p. 496. Upon the entry of the decree in the probate proceedings, he is undoubtedly functus officii.

The special guardian shows, however, twenty-one days upon which he rendered substantial service, previous to the matter being transferred to the appellate court, and is allowed therefor.

Before the decree can be entered and costs and disbursements fixed, as indicated in this memorandum, the attorneys for the proponent and contestants must submit affidavits to comply with rules 22 and 24.  