
    In the Matter of the Application of James C. Holden for leave to resign as trustee under the will of Albert Weber, Deceased. In the Matter of the Application of James C. Holden, Trustee, for leave to mortgage the Trust Estate.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    Trust—Power of court to make allowance for services.
    The court has power, in a proper case, to make an allowance to parties as compensation for services rendered by them for the benefit and protection of the trust estate, although not rendered at the instance of the trustee.
    Appeals from order modifying referee’s report as to allowances to be paid out of trust estate and confirming report as modified.
    
      Sutherland Tenney, for Wm. Foster, app’lt; William Man, for Bobina Brotheroe et al, resp’ts and app’lts ; John M. Bowers, for Martha Weber, resp’t; James Byrne, for Jas. C. Holden, resp’t; Theodore F. Hascall, guardian ad litem, app’lt.
   Bartlett, J.

The amounts awarded to the various parties to these proceedings were given by the referee and the learned judge at chamber's not as additional allowances by way of costs under the. Code of Civil Procedure, but as compensation for services rendered to the trust estate. In his report the learned referee says that the services were necessary and proper for the benefit and protection of the estate and that proper compensation therefor ought to be paid out of the trust funds; and this opinion, coming from one who was for many years the presiding justice of this court, was also entertained by Mr. Justice Barrett, who agreed that the court had power to authorize the trustee to pay for services which were beneficial to the estate. It was in this view, therefore, that the various payments were directed to be made; and hence it is not necessary to consider whether they could be justified as allowances under § 3253 of the Code.

The case of Wetmore v. Parker, 52 N. Y., 450, 466, upholds the power of the special term, of the supreme court, independently of statutory provisions relating to costs, “to make allowances to trustees and others acting in a fiduciary capacity for all expenses necessarily incurred in the faithful performance of their duties, including counsel fees.” The power exercised in the present proceedings is somewhat broader, being extended so as to embrace for services resulting in advantage to the estate, although not all of them rendered at the instance of the trustee. Under the circumstances disclosed by the appeal papers, we are not prepared to say that the court below exceeded its authority in making these allowances, but we are quite clear that it exercised its discretion wisely in reducing the amounts awarded by the referee to two of the parties.

The order appealed from should be affirmed, with costs in favor of the respondent Martha Weber.

Van Brunt, P. J., concurs.  