
    In the Matter of the Judicial Settlement of the Final Account of Proceedings of William H. Vandercar and Theodore T. Neilson, as Surviving Executors of Lillian M. Soresi, Deceased. Frederick W. Scholem, Appellant; Henri Bendel, Inc., James A. Davis, Trustee; David Keener, Respondents.
   Proceeding in the Surrogate’s Court, Westchester County, arising out of the settlement of the executors’ accounts. The appellant, who was an attorney for the testatrix during her lifetime, held a fund in escrow at the time of her death. Shortly after her death the estate became entitled to the fund. Before turning it over to the executors, appellant retained the amount of his claim for legal services which had been rendered to the testatrix in her lifetime. The executors accepted the proceeds but the creditors of the testatrix objected. A referee conducted hearings on appellant’s claim (1) that the testatrix agreed that he retain the value of his services out of the fund; (2) that the appellant in fact had paid himself out of the fund while the testatrix was alive; and (3) that in any event the appellant was entitled to impress an attorney’s lien on the fund and retain the claimed value of his services before turning the balance of the fund over to the estate. The referee found against appellant on all grounds and his report has been confirmed by the decree. The decree directs appellant to pay the retained moneys, plus interest, costs, etc., over to the estate. Decree of the Surrogate’s Court of Westchester County, in so far as appeal is taken therefrom, unanimously affirmed, with costs to all respondents who have filed briefs, payable out of the estate. Costs are discretionary. On the showing in this record it cannot be said that there was an abuse of discretion by the surrogate in that respect. Present — Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ. ,  