
    In the Matter of the Final Judicial Settlement of the Accounts of Jeremiah P. Robinson, and Others, as Executors, of and Trustees under the last Will and Testament of Jeremiah P. Robinson, Deceased, Respondents. R. Burnham Moffat, Individually and as Special Guardian of Charlotte Leech and Robinson Leech, Appellant. In the Matter of the Final Judicial Settlement of the Accounts of Jeremiah P. Robinson and Others, as Executors of and Trustees under the last Will and Testament of Elizabeth Robinson, Deceased, Respondents. R. Burnham Moffat, Individually and as Special Guardian of Charlotte Leech and Robinson Leech, Appellant.
    (No. 2.)
    
      Surrogate — allowance to a special guardian.
    
    A surrogate has no power to award á special guardian, who represented (an infant .party to an executor’s accounting, compensation out of the corpiis of thé ' estate, in excess of the costs authorized hy section 2561 of the Code ' of Civil Procedure; the fact that the infant had a substantial interest in the ¡property accounted, for does not alter the situation. I
    
    Appeal by R. Burnham Moffat, individually and as special guaidian for Charlotte Leech- and Robinson Leech, from so much of a decree of the Surrogate’s Court of Kings county in each’of the-.above-entitled proceedings, entered in said Surrogate’s Court' on the-2d day of December, 1898, as denies his application for anj allowance, out of the estate in addition to the taxable costs authorized by section 2561 of the Code of Civil Procedure, with notice of an intention to bring up for review upon such appeal an order entered in said Surrogate’s Court on the 1st day of November, 1898, denying said application.
    
      R. Burnham Moffat, special guardian, appellant.
    
      Frank D. Sturges, for the respondents.
   Cullen, J.:

These are proceedings brought for an accounting by the executors of the wills of Mr. and Mrs. Robinson. The executors of both wills are the same, and so are the persons interested in the two estates and the parties to the proceedings. On the conclusion of the pi’o- • ceedings the appellant, the guardian ad Utem for the Leech infants, applied to the surrogate for an allowance by way of compensation in addition to the taxable costs authorized by section 2561 of the Code of Civil Procedure. The applications were denied by the learned surrogate for want of power, and from so much of the decrees as denies the guardian’s applications, these appeals are taken.

The leaimed surrogate based his conclusion that there was no-power in the court to grant additional compensation to the guardian from the corpus of the estate on the authority of Matter of Budlong (100 N. Y. 203), and Matter of Ruppaner (7 App. Div. 11). The guardian ad litem, while admitting the force of these decisions, insists that .they are applicable only to cases of contested probate,, and that the surrogate has in other proceedings the power to allow to the guardian,_out of the estate or fund in court, compensation for his services, not limited or restricted to taxable costs. For the purposes of his argument the learned counsel has recited at much length the history of Surrogates’ Courts in this State, and has elaborately discussed the inherent power of courts to appoint a guardian adJ litem in actions or proceedings before them, and provide for their compensation. In this discussion we feel it unnecessary to follow the counsel at length, for in our opinion it is based on an erroneous-view of the power, or at least the right, of the court to award compensation to guardians. As an infant must appear in and defend an action or proceeding against him by a guardian, it is necessary that the guardian should be paid for his services. Therefore, in actions in equity, even where the infant has no valuable interest in the property which is the subject of the litigation, the guardian is allowed his compensation out' of the fund or property in court. This is an expense that the plaintiff or Other parties in interest have to bear the same as other expenses, of the litigation on, account of the misfortune that an infant has either, a real or apparent interest which it is necessary to cut off.; But it is the settled law in this State, supported by a number of authorities, that where compensation is made to a guardian - ad litem oiit of the general fund and not from the estate of the infant, the compensar tian is limited to the taxed costs in the suit. (Union Insurance Co. v. Van Rensselaer, 4 Paige, 85; Gott v. Cook, 7 id. 521; Downing v. Marshall, 37 N. Y. 380; Matter of Holden, 126 id. 589; Doremus v. Crosby, 66 Hun, 125.) The guardian seeks to distinguish this line of cases from the present one by the fact that in the cases cited the infant-had no interest in the property in court, or that his interest was contingent only. If such were the case it would not affect the question before us. If where an infant has no substantial interest in the property the compensation of the guardian is limited to taxable costs, and beyond this extent, cannot be ¡charged on the property of others, we cannot see why the fact that he' has some interest in the property can justify the court in compelling others to contribute to his compensation. We regard, however, the Holden Case (supra) as decisive of the question before uk That was a special proceeding by petition, brought by a trustee for leave to resign his trust' and for a settlement of liis accounts. ; It was there held that the court could not award to a guardian qd 'litem out of the corpus of the estate any allowance beyond costs, not even the extra allowance authorized in an action. The case was quite similar to the one before us. The proceeding in one of its branches was the same as the present one,, that is for an accounting. The' guardian ad litem argues that in the Holden case the interest w’as contingent and not vested, and that the decision proceeded on this ground, while he urges .that in the present ease the interests of the infants are vested. The latter proposition is true, but only in a certain sense. The estate of the appellants is technically a vested one "under' the • definí tian of that term in the Revised Statutes, but it is subject to be divested by their.death before the decease of' the life tenant. We have examined the will in the Holden case, ¡and the interest of the infants in that case seems to be substantially of the same character as that of the appellants. When Judge Rug-er spoke of the interest being contingent, it is apparent that he did not use that term in its technical sense, but as asserting the fact that the ultimate enjoyment of the property by the infants was contingent on their surviving the life tenant. We think the Holden case is authority for the general proposition that no allowances can be made for counsel in a litigation beyond taxable costs (which would include any extra allowance authorized by sections 3252 and 3253 of the Code of Civil Procedure), except in the case of trustees who i'epresent the fund, or of one who has recovered the fund for the benefit of himself and others. The appellants do not come within "the exceptions, and while we recognize the meritorious character of "the services of the guardian and the entire inadequacy of his compensation, we are of the opinion that the surrogate could make him no greater allowance except out of the estate or interests of his wards — an allowance which could not be paid until after the death •of the life tenant, because until that time it is uncertain in whom "the trust estate will untimately vest.

The guardian ad litem has cited to us several cases from the Surrogate’s Court in the city of New York, showing that compensation in excess of taxable costs has been awarded to guardians ad litem on accountings. If the fund out of which these allowances were made was the property of the wards, then they may be, justified. If the award was out" of the general estate in which others were interested, then we think it was without authority of law, and opposed to the •cases to which we have referred. All that was decided in Weed v. Paine (31 Hun, 10) is that extra allowances authorized by the Code were not limited to the sum of $2,000 in the aggregate, but "that $2,000 might be awarded to the parties on each side. We regard Roberts v. New York Elevated R. R. Co. (12 Misc. Rep. 345) as inconsistent with the cases of Matter of Holden and Doremus v. Crosby. It is, therefore, not to be followed.

The parts of decrees appealed from should be affirmed, but without costs.

All concurred.

• Parts of decrees appealed from affirmed, without costs.  