
    Western vs. Romaine. In the matter of the Proof of the last will and testament of Benjamin Romaine, deceased.
    
    In all cases of contest before a Surrogate’s Court, costs may be awarded to the parly, in the judgment of the Court, entitled thereto.
    When awarded, costs are taxed at the same rates as were allowed for similar services in the Courts of Common Pleas, in the year 1837.
    There are no stated terms in the Surrogate’s Court. In a case of contest, attorneys’ or proctors’ fees can be taxed only as fpp a single trial, except for services in relation to motions or interlocutory proceedings. A charge for copies of the depositions or minutes of the evidence taken by the attorney • or proctor, in the course of the trial, is not taxable.
    H. M. Western, for the Contestants.
    
    A. Boardman, for the Executors.
    
   The Surrogate.

On the taxation of costs in this matter, the rate at which they should be adjudged was disputed. In the Ecclesiastical Courts of England, costs are allowed in testamentary cases, both in original suits and on appeals. (Shultz vs. Pulver, 3 Paige, 185; Williams on Executors, 286. 310.) This practice never was adopted in this State previous to the Bevised Statutes, the Court of Probate having expressly adjudicated, that no authority existed to allow costs. (3 Paige’s Ch. R., 185; Reid vs. Vanderheyden, 5 Cowen’s R., 719.) By Section 10, Title 1, c. 2, Part HI., of the Bevised Statutes, it was' enacted, that in all cases of contest before a Surrogate’s Court, cost's may be awarded to the parties, in the judgment of the Court, entitled thereto. (2 R. S., p. 322, § 23, 3d ed.) The legislature having been silent as to the tariff of fees chargeable, where costs were adjudged in cases of contest, the fee bill of the Court of Chancery seems to have been adopted, so far as it was applicable to proceedings in this Court, until the passage of the Act, “ concerning the proof of wills, &c.,” in the year 1837. By the 70th Section of that Act, it was provided, that in all cases where the Surrogate is authorized by law to award costs, he shall tax the costs at the same rate allowed for similar services in the Courts of Common Pleas. (Lems 1837, y>. 536.) The rates allowed at that time in Courts of Common Pleas, were the same as the Common Pleas costs established by the Revised Statutes.

The Common Pleas fee bill was modified by the Act of 1840. (Lwws of 1840, o. 386.) At the present time, by the operation of the constitution and the code, the Court of Chancery and the Courts of Common Pleas, are no longer in existence, and the costs of proceedings to judgment, except on appeals, are the same in all Courts of record. (Constitution, Art XIV. § 8. Code, Title 10.)

Unless, therefore, we adhere to the Common Pleas fee bill, existing in 1837 when the Legislature prescribed the rate at which costs should be taxed in this Court, the Surrogate is left the naked power of awarding costs, without any guide or direction as to the amount to be allowed for specific services or proceedings. But if, on the other hand, the Act of 1837 is construed to be an adoption, for costs in Surrogates’ Courts, of the rates which then actually existed in Courts of Common Pleas, we have a fixed standard, independent of all the changes which have been subsequently made in relation to Courts of Common Pleas and costs therein.

I am inclined to adhere to the Common Pleas fee bill, as existing in 1837, for several reasons. The mode of compensation for services at that time was adapted to the nature of proceedings before the Surrogate, especially in relation to allowances by the folio. The rate of compensation is moderate, and indicates that in the peculiar class of cases of which this Court has jurisdiction, it was designed that costs, when granted, should be taxed after the lowest rate of fees then established by law in Courts of record. By adopting the Common Pleas fee bill, it is reasonable to presume that the Legislature had directly in view the identical fees then allowed, and did not intend to make the costs in the Surrogate’s Court shift and vary, with every change that might thereafter be made in the model, from which costs in proceedings before the Surrogate had been taken.

It is upon this principle that costs were heretofore taxed in the Circuit Court of the United States, at the same rate as existed in the Supreme Court of this State, when the Act of Congress was passed in 1793, which provided for the same costs in the Circuit Court as were “ allowed in the Superior or Supreme Courts of the respective States.” (Conklin's Treatise,p. 307, note b.)

The repeal of the old Common Pleas fee' bill, and the abolition of those Courts, have not affected the Act of 1837, which declares that costs in Surrogates’ Courts shaE be the same as aEowed in Courts of Common Pleas.

Taking then the Common Pleas costs of that date for a standard, there remain some points to decide respecting various items of the biE now proposed for taxation.

There are charges contained in the biE as for monthly terms of the Court. This I conceive to be erroneous. There are no stated terms in this Court. It is always open, and its proceedings are continued de die m Mem. "Whatever length of time a case may be continued, I can see no reason why terns of any particular duration should be adopted by construction. This case was pending before the Surrogate for more than two years, adjournments being made and witnesses examined, from time to time, during that period. StiE the proceeding has .been one and the same, and there has been in fact but one trial; and except for services in relation to motions or interlocutory proceedings, attorneys’ or proctors’ fees can be taxed only as for a single trial. The charge for making copies of the depositions of witnesses is also to be tested by the same principle. The witnesses were examined in. open Court, their testimony was given on the trial, and although the statute requires “the proofs and examinations” to be reduced to writing, yet this is in fact clone by the Surrogate. These “ proofs and examinations” are not similar to depositions taken de bene esse, before a Judge out of Court, but are proofs taken in open Court by the Surrogate, and not by the counsel of the respective parties. The counsel have an opportunity of taking notes of the testimony for their own use, as on all other trials, but these are not strictly copies ipsis verbis of the depositions as written by the Judge. They are merely minutes of the evidence and cannot be charged for.

This disposes of the most important objection to the bill offered for taxation. The other items may easily be determined by reference to the fee bill."  