
    In the Matter of the Taxation of the Estate of Abraham J. Post, Deceased. Washington L. Cooper, as Executor, etc., of Abraham J. Post, Deceased, Appellant; George P. Webster, Special Guardian, Respondent.
    
      Costs — where the estate of an infant is not taxable under the transfer tax no allowance can be made to his special guardian.
    
    In a proceeding taken to assess tlie estate of a decedent under the provisions of the Transfer Tax Act, it is improper to make an allowance to a special guardian appointed for an infant party interested in remainder, whose interest cannot he determined or taxed in that proceeding, in which the only question presented is one between the State, the executor and an adult life tenant.
    Appeal by Washington L. Cooper, as executor, etc., of Abraham J. Post, deceased, from so much of an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 16th day of July, 1895, as awards to George P. Webster thirty dollars costs as special guardian, to be paid by said executor, and also from an order entered in said court on the 1st day of October, 1895, directing said Washington L. Cooper, as such executor, to pay to said George P. Webster, as such special guardian, said sum of thirty dollars, made on the application of George P. Webster for a resettlement of said first-mentioned order.
    
      Thomas W. Suits and Townsend Wandell, for the appellant.
    
      Philip W. Kopper, for the respondent.
   Patterson, J.:

It is not necessary, at the present time, to consider the question of the general power of the surrogate to appoint a special guardian for an infant in a proceeding- to assess the value of a decedent’s estate for the purpose of taxation under the provisions of the Transfer Tax Act (Chap. 399, Laws of 1892). The only inquiry on this appeal relates to the propriety of the allowance by the surrogate of a fee of thirty dollars to a special guardian appointed for certain infants in this particular proceeding, in which the amount allowed the special guardian was charged by the surrogate against the estate of Mr. Post in the hands of the executors of his will.

It appears conclusively from the papers presented on this appeal that there was no necessity whatever at any stage of the proceeding for the appointment of a special guardian. The infants had no interest in the proceeding, as the appraiser reported to the surrogate, and as was apparent from the beginning. The appraiser was appointed upon the petition of one of the executors, but the special guardian was not. Mr. Post’s will had been proven and was recorded in the surrogate’s office. It appeal’s, from the provisions of the will, that the testator’s widow was entitled to a life interest in the whole estate, that is to say, to the net income after the payment of all taxes and other proper charges thereon, and that the infants’ interests were only in remainder, and, as the appraiser found, not taxable at the then present time, it being not then ascertainable to whom the interest in remainder would finally pass. This situation was plainly disclosed on the face of the will, to which reference was made in the petition of the executor for the appointment of the appraiser, and the whole question of the imposition of the tax was, therefore, one between the State, the executor and the life tenant. Under such circumstances, we think there was no necessity for, or propriety in, the appointment of a special guardian, for no contest could possibly arise in the assessment proceeding, and under the provisions of the will by which the infants’ interests in remainder could be affected. The appointment of a special guardian and the burdening of the estate with charges for his services, under such circumstances, is a matter which should not be authorized by the court. "Whatever discretionary power a surrogate may have to appoint a special guardian, it can only be exercised when some reason exists therefor. No such reason is shown here, because, on the face of the will, it was apparent that no tax under the Transfer Tax Act could be levied upon the infants’ interests in remainder, and the order appealed from of October 1, 1895, must be reversed, and the order of July 15, 1895, modified by striking therefrom the allowance of thirty dollars made to the special guardian.

Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred.

Order of October 1, 1895, reversed, and order of July 15,1895, modified by striking therefrom the allowance of thirty dollars made to the special guardian.  