
    Lawrence C. Hafner et al., as Executors, Etc., Plaintiffs, v. Rosana C. Hafner et al., Defendants.
    (Supreme Court, New York Special Term,
    February, 1901.)
    Costs — Extra allowance not granted to the defendants in an action to construe a will — Code C. P., §§ 3252, 3253 — Compensation of guardian ad litem for infant defendants.
    Extra allowances cannot be made to parties defending an action for the construction of a will as such an action is not within Code C. P., § 3253, and such an allowance is not provided for by section 3252.
    The right of a guardian ad litem for infant defendants in such an action to compensation, beyond taxable costs, exists only so far as funds, to which the infants are presently entitled, may be the subject of litigation and, therefore, where the interests of the infants in the principal were contingent, the court limited the basis of the guardian’s compensation to the accrued income payable to them under the decree.
    Action for construction of will.
    Robert A. B. Dayton, for plaintiffs.
    George Flint Warren, guardian ad litem, for infant defendant.
    Tracy & Lane, for defendant Brandon, administrator, etc.
   Bischoff, J.

The case of Savage v. Sherman (87 N. Y. 277), cited with approval in Matter of Holden (126 id. 589), is authority for the proposition that parties defendant to an action for the construction of a will may not be awarded additional allowances. In the case cited the point was ruled without discussion of the reasons, but the soundness of the proposition, as applied to the present statute, is disclosed upon examination of the case of Downing v. Marshall (37 N. Y. 380), which proceeded upon a construction of sections 308 and 309 of the Code of Procedure — a construction directly applicable to the practically' identical provisions of sections 3252 and 3253 of the Code of Civil Procedure upon this point.

By section 3252 (as by section 308 of the earlier Code), percentages in addition to costs are awarded to the plaintiff in actions to construe wills, among other specified classes of cases. By section 3253 (as by section 309), a “ further ” allowance may also be awarded in difficult and extraordinary cases and in certain of the actions referred to in the preceding section, omitting, however, actions for the construction of wills. The conclusion reached in Downing v. Marshall, that this class of actions was by implication excluded- from the provisions of section 309, is effective, to an equal degree, in the construction of section 3253 of the present Code, for the respective statutes, so far, have, no material difference in form and cannot be distinguished in substance. Compensation-for the services of counsel in this litigation cannot be awarded, therefore, except as within the inherent powers of the court, irrespective of the statute. The plaintiffs, who act in the capacity of trustees, may receive an allowance for this purpose (Wetmore v. Parker, 52 N. Y. 466; Downing v. Marshall, supra), hut no allowance from the fund in suit may be made to other parties. (Matter of Robinson, 40 App. Div. 30, 33).

The guardian ad litem, for the infant parties does not stand in the position of one who has recovered ” a fund for the general benefit, as is suggested. He has merely participated in litigation concerning the fixing of interests in a fund rightfully in the plaintiffs’ hands, and with any recovery ” or protection of the fund itself he has had nothing to do.

His right to compensation, in an amount beyond taxable costs, exists only so far as funds, to which the infants are at present entitled, may be the subject of the litigation (Doremus v. Doremus, 20 N. Y. Supp. 906, and cases cited), and here the infants have but a contingent interest in the principal of the estate. I may award compensation payable out of the income which has been accumulated and which, under the decree, is payable to the infants but to no further extent (Doremus v. Doremus, supra), and for the purpose of fixing the award, I desire proof of the amount thus payable, which amount should be recited in the proposed decree.

Ordered accordingly.  