
    In the Matter of the Accounting of Wirt P. Marks, as Temporary Administrator of the Estate and as Executor of Grace B. Walters, Deceased. Margaret A. Weldon, Appellant; Wirt P. Marks, as Administrator and Executor, et al., Respondents.
    Submitted April 14, 1941;
    decided May 22, 1941.
   Per Curiam.

The power of the court to award costs in all courts and to all parties in proceedings for the construction of a will is well established. (Matter of Rooker, 248 N. Y. 361; Matter of Kennedy, 279 N. Y. 255.) Such a grant of costs does not deprive the Surrogate of discretionary powers granted to him under section 278 of the Surrogate’s Court Act. (Matter of Staiger, 249 N. Y. 229.) Such costs do not include any allowances for counsel fee. That is a matter to be determined by the Surrogate. (Matter of Reimers, 264 N. Y. 62.) Robert E. Walters was not a party to any controversy determined, by decision of the courts below which could be reviewed upon the appeal to this court and was not a proper party to the appeal. The motion to amend the remittitur is granted to the extent that it will provide that no costs are awarded to him.

Motion to amend the remittitur granted. Return of remittitur requested and when returned it will be amended by providing that no costs are allowed Robert E. Walters.  