
    New York County. Subrogate.
    Hon. D. G. ROLLINS,
    May, 1883.
    Schell v. Hewitt. In the matter of the estate of Edward Hewitt, deceased.
    
    In the absence of a direction by the appellate court, a Surrogate’s court has no authority to compensate a special guardian appointed by it, for services rendered on an appeal from its determination.
    Code Civ. Pro., § 2589, providing that the costs of an appeal from a Surrogate’s determination “may be made payable out of the estate or fund, or personally by the unsuccessful party, as directed by the appellate court; or, if such a direction is not given, as directed by the Surrogate,” does not empower the Surrogate to award costs of the appeal. The Surrogate’s direction can relate only to the mode of payment.
    Having no power to award costs of an appeal, a Surrogate cannot, under the form of such an award, remunerate a special guardian who has acted as such on the appeal.
    
      It seems, that Code Civ. Pro., § 2566, providing, in respect to a Surrogate’s court, that “each other officer, including a referee, and each witness, is entitled to the same fees, for his services.......as he is allowed for like services in the Supreme Court,” includes special guardians appointed by the former court, as regards services rendered in proceedings therein.
    Application, by Francis Schell, special guardian of decedent’s infant children, on the proceeding to prove his alleged will, for compensation, out of the estate, for services rendered by himself, as such guardian, on appeal from the Surrogate’s decree refusing probate; opposed by Minnie Hewitt, administratrix of decedent’s estate. The facts appear sufficiently in the opinion.
    John Delehanty, for special guardian.
    
    Ten Eyck & Remington, for administratrix.
   The Surrogate.

An instrument purporting to be the last will of Edward Hewitt was, in the year 1881, offered for probate in this court. A contest thereupon arose, which resulted adversely to the proponents. While that contest was pending, the applicant in the present proceeding was appointed special guardian of decedent’s minor children. He represented them in the probate controversy, and, by the Surrogate’s decree, was allowed, as compensation therefor, the sum of $25, which he has since received.

From this decree, which denied probate to the paper propounded as a will, an appeal was taken to the Supreme Court. A judgment of affirmance was there pronounced, which was itself subsequently affirmed by the Court of Appeals.

The special guardian alleges that, during the pendency of these appellate proceedings, he rendered services which are worthy of compensation, and he now asks that such compensation be awarded him out of the assets of the estate. In opposition to this claim, it is urged that the functions of the applicant, as special guardian, ceased with the entry of the Surrogate’s decree, and that he was neither required nor empowered, by virtue of his office, to represent the infants thereafter. This view, as it seems to me, is correct. 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 acl litem (Kellinger v. Roe, 7 Paige, 363; Underhill v. Dennis, 9 Paige, 209; Chaffee v. Baptist Miss. Conv., 10 Paige, 89; Moody v. Gleason, 7 Cowen, 482; Fish v. Ferris, 3 E. D. Smith, 567).

It is, doubtless, true that, if an appellate court, though it has made no formal selection of a guardian ad litem, has nevertheless practically recognized, as such, one who has acted as special guardian before the Surrogate, the person so recognized may become thereby entitled to compensation.

In the case at bar, for example, the moving party, for aught that is disclosed by the papers before me, may have been treated by the appellate courts, as one entitled to represent the infants whose interests, in the Surrogate’s court, he had, as special guardian, been bound to protect. Accordingly, his claim to be compensated for services rendered in the proceedings upon appeal may have quite as good a foundation as if he had received an express appointment as guardian ad litem. But, however meritorious his claim may be, it cannot be enforced here. He must resort for relief to the appellate tribunals, wherein he rendered the services. In the absence of directions from those tribunals, the Surrogate has no authority to make any provision for his compensation.

Before the enactment of the Code of Civil Procedure, the statutes were silent, both as to the amount which special guardians should receive in payment for their services, and as to the mode of procedure whereby payment for such services could be obtained. But it was, in practice, assumed that the right of . the Surrogate to appoint those officers involved the right to direct the payment to them of reasonable compensation. Any question as to the authority to give such direction seems to be now set at rest by the provisions of the Code.

Sections 2558-2565, inclusive, have to do with costs and allowances to executors, administrators, freeholders, appraisers, etc. Then follows section 2566, which dedares that “each other officer including a referee and each witness is entitled to the same fees for his services . . . as he is allowed for like services in the Supreme Court.”

While there is here no express mention of special guardians, the language is broad enough to cover such officers, and was intended, I think, to include them.

How, if their right to be awarded compensation by the Surrogate depends solely upon the authority which this section confers, such award can only be made for services rendered in this court.

Aside from the section which has just been quoted, the only Code provisions, which have any important bearing upon the matter under discussion, are sections 2557, 2558, 2560 and 2589, which relate to costs awardable to parties in proceedings before the Surrogate, and on appeal from that court. If, therefore, a special guardian’s right to compensation is not to be tested by section 2566 alone, it is because the several sections above cited enlarge the authority of the Surrogate, and permit him to grant an application like the present, even though no direction has been given by the Supreme Court or the Court of Appeals.

It is true that those sections contain expressions which fairly suggest the liberal interpretation here claimed for them—especially when considered by themselves, apart from other Code provisions in pari materia, and without reference to the state of the law upon this subject before September 1, 1880.

But if due heed be paid to the entire scheme of appellate procedure established by the Code, and to the general policy of the statutes before its enactment, it will be found that the claim here set up cannot he successfully maintained, and that, under no circumstances, can the Surrogate order payment of appeal costs, save in obedience to the directions of an appellate court.

That he was confined within those limits just before the Code went into operation is too well settled to require discussion (Morgan v. Morgan, 1 Abb. Pr., N. S., 40; Seguine v. Seguine, 3 Abb. Pr., N. S., 442; Dupuy v. Wurts, 47 How. Pr., 225; Savage v. Gould, 60 How. Pr., 255).

What change, if any, has since been effected? The Code declares, by section 2557, that, “except where .special provision is otherwise made by law, costs awarded by a decree may be made payable by the party personally, or out of the estate or fund, as justice requires.”

Manifestly, no authority is here given, or intended to be given, for the award of costs, either upon the appeal or otherwise. The sole purpose of the section is to declare what person or fund is to be made chargeable with costs, in cases where such costs are awarded. ‘ ‘ Whenever you lawfully direct that costs be paid,” it says to the Surrogate, “you are at liberty, unless prevented by some positive statutory restriction, to exercise your discretion as justice may require, in directing that such costs be paid either by some party or parties to the proceeding, or out of the estate or fund.” Section 2558 provides that the award of costs in a decree is in the discretion of the Surrogate, except in one of the following cases:

Then follow the exceptions:

1. Where special directions respecting the award of costs are contained in a judgment or order made (a) upon an appeal from the Surrogate’s determination, or (b) upon a motion for a new trial of questions of fact tried by a jury (in which cases costs must be awarded according to those directions).
2. When a question of fact has been tried by a jury. In such a case, unless an appellate court has given special directions, costs must be allowed to the successful party.
3. When there is a controversy over the probate of a will. The Surrogate is prohibited in such a case from granting costs to unsuccessful contestants, save for certain specified exceptions.

Section 2560 declares that the costs of an appeal, where they are awarded by the Surrogate, shall be the same as if they were awarded in the Supreme Court.

These two sections (2558 and 2560) when compared with section 2589, which will be presently quoted, and when the policy of the law, as it was clearly settled before the enactment of the Code, is taken into consideration, will be found to demand a narrower interpretation than that which the present applicant seeks to put upon them. While they provide, among other things, for the adjustment, in Surrogates’ decrees, of costs in appeal proceedings, it is not their intention, as it seems to me, to give to the Surrogate any power to aivard such costs, in the strict sense of that term; in other words, they do not aim to enlarge the scope of his authority, so as to enable him to adjudge that costs be paid, when the court above has refused to award them, or given no direction whatever—they are simply designed to establish the mode whereby the Surrogate is enabled to exercise, in respect to costs on appeal, such limited authority as is conferred upon him by other provisions of law.

The two sections, which are the immediate subject of discussion, form a part of article 3 of title 2 of chapter 18 of the Code. The chapter treats of “Surrogates’ courts and proceedings therein.” The title is devoted to “provisions relating generally to the proceedings in Surrogates’ courts, and to appeals from those courts.” The article is entitled: “Decrees and orders and the enforcement thereof. Costs and fees.” The article which immediately follows treats solely of “appeals.” This arrangement of topics is in thorough harmony with the view I have suggested, that sections 2558 and 2560 in the third article are intended to affect, in no manner, the question of the Surrogate’s right to award costs on appeal, but only to provide for their insertion in a decree, in cases where they may be lawfully awarded.

The correctness of this view becomes very apparent upon reference to section 2589, one of the sections of article 4. which, as has been stated already, is devoted solely to “appeals.”

That section provides that the appellate court may award to the successful party the costs of an appeal, or may direct that costs shall abide the event of a new trial, or of subsequent proceedings in the Surrogate’s court. The section further declares that in either case, the costs may be made payable out of the estate or fund, or personally by the unsuccessful party, as directed by the appellate court, or, if such a direction is not given, as directed by the Surrogate.

This means, I take it, not that, if an appellate court fails to award appeal costs, the Surrogate is at liberty to award them, but that, if an appellate court does award costs, and gives no direction whether the same shall be paid out of the estate or fund, or by the unsuccessful party, the Surrogate may exercise his discretion in the particulars wherein the appellate court has failed to exercise its own.

This construction of section 2589 is in strict harmony with the interpretation I have put upon section 2558, and both sections are thus made accordant with the statutes in force before the Code was enacted, and with what must certainly be regarded as the most sensible procedure for regulating the award of costs on appeal.

Application denied.  