
    Delia A. Senter et al., Plaintiffs, v. Benjamin F. Petheram, as Executor, etc., et al., Defendants.
    (Supreme Court, Onondaga Special Term,
    August, 1909.)
    Costs — Additional allowance by way of costs: Nature of action or subject matter involved — Allowance in particular actions — Action to determine validity of probate: Amount — In particular actions — Action to determine validity of probate.
    Executors and administrators — Rights and liabilities between representative and estate — Allowances — Counsel fees — In action to determine validity of probate.
    Costs may be awarded by the court, in an action under section 2653a of the Code of Civil Procedure to determine the validity of the probate of a will; but the amount which can be allowed is limited by sections 3253 and 3254, and cannot exceed in the aggregate the sum of $2,000.
    In such a case, where the will is sustained, the counsel fees of the executor are payable out of the estate, without the need of any allowance by way of costs.
    Memorandum on decision of motion for allowance of costs, etc.
    William B. Fuller, for plaintiffs.
    Frank E. Stone, for defendant executor.
    George Barrow, for defendants Frank H. Wescott, Jennie B. Dawson, Skaneateles Library Association and St. James Episcopal Church.
    E. C. Miller, for defendant Flora Moody.
    M. F. Dillon, for defendant Harrison Dodge.
    Charles F. Hillganz, for defendant Homer J. Wheaton.
   Wheeler, J.

Attorneys for the various parties in "this action apply to the court for an allowance of costs under the provisions of section 3230 of the Code of Civil Procedure, which provides that, “ Except as prescribed in the last two sections the court may, upon the rendition of final judgment, in its discretion," awárd costs to any party in such sum, not exceeding the total amount authorized by statute, as to the court may seem just.”

This action was brought under the provisions of section 2653a of the Code of Civil Procedure, to set- aside the probate of the will of Ellen M. Dodge, deceased, who left an estate of $100,000 and upwards. The jury by its verdict sustained the will.

It has been held in the recent case of Larkin v. McHamee, 109 App. Div. 884, affd. by Court of Appeals, 188 M. T. 558, that an action brought under section 2653a is not an action falling within the provisions of sections 3228 and 3229 of the Code, but under the provisions of section 3230; and, therefore, the court has the power to award costs to any party to the litigation, even to an unsuccessful plaintiff in an action of this nature.

The most important question submitted for our determination is to what amount costs may be awarded. It is contended by counsel that the amount which may be awarded is unlimited, and is only governed by the sound discretion and judgment of the court. It is argued that sections 3253 and 3254, which limit the costs to be awarded to a sum not exceeding five per centum of the value of the subject-matter involved, and in no case exceeding $2,000 in the aggregate, have no application to a case such as is here presented, and that, where the amount of costs is not specifically limited by statute, the amount to he awarded may be any sum the court sees fit to give.. Aikman v. Harsell, 31 Hun, 634-636; affd., 98 N. Y. 186.

The contention is undoubtedly correct where no limit is imposed by statute, but the question remains whether section 3230 does not in fact limit the discretion of the court. Prior to the amendment of the section in 1900, no restriction as to the amount which might be given was contained in the section in question, but by the amendment of that year the costs were limited to a sum “ not exceeding the total amount authorized by statuteIt was, of course, the plain intent ' of the Legislature to put a restriction on the courts, and while it is not altogether plain just what statute or provisions were intended to be referred to, to guide the court, we nevertheless are of the opinion that the Legislature intended that the amount of costs to be awarded should not exceed the regular taxable costs allowed in ordinary actions, and thej extra allowance possible, as prescribed in sections 3253 and 3254. To adopt any other view would be to render the amendment made without any force and effect whatever.

Therefore, we conclude that the allowances to be made in this case cannot exceed the regular taxable costs and the $2,000 by way of extra allowance, as therein permitted.

Such being the case, and we being of the opinion that a total allowance of $2,000 in this case is not only just and proper, it remains for us to determine to whom such allowance should be made, and how it should be distributed. After a careful consideration, of the matter, we have reached the conclusion that this sum of $2,000 should be allowed to and distributed among the following defendants, to-wit: the St. James Episcopal Church of Skaneateles, the Skaneateles Library Association, Rev. Frank N. Weseott, and Jennie B. Dawson, to each of whom was given by the will a bequest of $5,000, and to Mrs. Flora Moody, to whom was left a legacy of $2,500, and to Harrison Dodge, to whom was given a legacy of $1,000, making $23,500 in all of specific legacies, carved out of an estate of over $100,000. By the will, the balance of said estate amounting to upwards of $75,000 was left to the nephews and nieces of the testatrix who, .in fact (if not in form), joined in the effort to set aside the will. It will thus be seen that the legatees above named, whose legacies amounted to said sum of $23,500, were the real defendants and the persons particularly concerned in the outcome of this litigation, and are the only ones who would be really and substantially benefited by an allowance under the provisions of section 3230.

The executor of the will was made a party defendant. It was his duty as such to defend this action and to use his best efforts to sustain the will. His necessary and reasonable expenses in retaining and employing counsel in this litigation is a legitimate expense to be paid from and out of the estate he administers, and are allowable as such upon an accounting. These must be paid by him out of the estate in his hands whether this court makes him any allowance oí costs or not in the judgment to be entered as the result of the trial recently had. Jenney v. Lacy, 45 App. Div. 630.

We, therefore, see no occasion for making the executor any allowance beyond the usual and ordinary taxable costs and disbursements in an ordinary action.

The attorney for the plaintiffs asks the court to make the plaintiffs an allowance of $2,500. The court has the power to make an allowance to a defeated plaintiff in an action to set aside the probate of a will, as has been held in the case of Larkin v. McNamee, 109 App. Div. 884. We think the amount asked, considering the services rendered by the plaintiffs’ attorney, not unreasonable when we take into consideration the time and labor expended by him. While we think the verdict was right, the action was not brought without reasonable expectation of success. It was prosecuted in absolute good faith, and with great ability and thoroughness by plaintiffs’ attorney and counsel, and we have no hesitation in saying the value of the services of plaintiffs’ attorney is, in our opinion, in excess of any allowance he has asked. Nevertheless, to award an allowance to him out.of the estate would deprive the attorneys for the successful legatees of the allowance we are authorized to make to them. The plaintiffs’ attorney has the right to look to his clients for reasonable compensation for his services, and it will be their duty to pay him for them; and, as an allowance to him out of the estate would ultimately be paid by his clients’ money, we think, under the circumstances, we should deny his application.

These considerations, therefore, leave the $2,000 allowance which we are authorized to make, to be distributed among the legatees first named. We think they are fairly entitled to it. o The case has been an unusually protracted one. The estate is $100,000 and upwards. During the pendency of the litigation incident to the will, it has increased in value to nearly $125,000. The litigation incident to the contest before the surrogate deprived these legatees of the income therefrom for a period, so that within the time the interest on their legacies has reached a considerable sum which has increased the amount and value of the estate of the contestants. The trial took fourteen days. The preparation for the trial involved a large amount of labor on the part of all, and we are of the opinion this court is in no way abusing its discretion in awarding to these legatees, in addition to the regular taxable costs, an allowance of $2,000, to be distributed among them. It is difficult for the court to determine how this distribution should be made. We have, however, taken into consideration, in arriving at the decision, the amount of legacy at stake, the time devoted by each counsel to the case from start to finish; and, with these things in view, make the following directions as to costs and allowances, to-wit:

Let each of the defendants in this action, separately answering the plaintiffs’ complaint, tax and recover, to he paid out of the estate, a separate regular bill of costs, including taxable disbursements.

Let the plaintiffs tax and recover, to be paid out of the estate, a like bill.

An extra allowance of $2,000 is made, to be distributed as follows, to-wit:

Fifteen hundred dollars to the defendants Frank H. Wescott, Jennie B. Dawson, Skaneateles Library Association, an'd the rector, wardens and vestry of St. James Episcopal Church of Skaneateles, appearing by George Barrow, one-quarter to each; $400 to the defendant Flora Moody, appearing by her attorney E. C. Hiller; $100 to Harrison Dodge, appearing by his attorney H. F. Dillon.

Plaintiffs’ motion for a new trial on the minutes is denied.

Hotion denied.  