
    In the Matter of the Probate of the Alleged Last Will and Codicil of Antoine Ruppaner. John S. Keyes and Theodore E. Smith, Individually and as Executors, etc., of Antoine Ruppaner, Deceased, Appellants; Samuel D. Sewards, Esq., Attorney and Guardian, Respondent.
    
      Surrogate ^he cannot allow a gua/rdian ad litem more than seventy dollars and' disbursements— Code of Civil Procedure, §§ 2558, subd. 3, 2559, 2560, 2561. '
    The surrogate has no power to award costs to a guardian ad litem in any case in. excess of seventy dollars and his disbursements. If a guardian ad litera is entitled to a counsel fee, in addition to costs, it must be paid out of the infant’s estate.
    Appeal by John S. Keyes and another, individually and as exec utors, etc., of Antoine Ruppaner, deceased, from so much of a decree of the Surrogate’s Court of the county of New York, entered. in said Surrogate’s Court on the 18th day of February,. 1896, as awards $250- to Samuel. B. Sewards, Esq., as special guardian for Anna Kristof as his costs of the proceeding.
    
      Edward C. Perkins, Frederick M. Littlefield and Henry H. Abbott, for the appellants.
    
      S. D. Sewards, for the respondent.
   Ingraham, J.:

The costs in' proceedings in Surrogates’ Courts are. regulated by the Code (§§ 2558-2561, inclusive). Subdivision. 3 of. section 2558 provides that “ when the decree is made upon a contested application for probate, or revocation of probate of a will, costs, payable out of the estate or otherwise, shall not be awarded to an unsuccessful contestant of the will, unless he is a special guardian for an' infant, appointed by the surrogate,' or is named-as an executor in a paper prbpounded by him, in good -faith, as the- last will of the decedent.” And by section 2561 it is provided- that, in a case other than one of those specified in section 2560, “ the. surrogate; upon rendering a decree, may, in his- discretion, fix such a sum, to be allowed as costs, in addition to the disbursements, as he deems reasonable, not exceeding * * *. ; where there has been a contest, seventy dollars,” unless the trial necessarily occupied more than two days. In this case the trial- did not occupy, more than two days. These provisions of the Code are the only- provisions which allow Surrogates’. Courts to award to a guardian ad litem any sum out of the estate of the decedent. If a guardian ad litem is entitled to -counsel fee, in addition to the costs the surrogate' can award,, he should be paid out of the infant’s estate. See Matter of Will of Budlong (100 N. Y. 205) where the- court say: “The special guardian was appointed to look after and protect "the interests of the infants: He- had no duty whatever to discharge in reference to the estate of the testator, and there was no authority whatever to -order the compensation of the special "guardian to be paid-out of the estate. His compensation should either come from the infants or their estáte.” . The only authority,' therefore, .that 'the surrogate had .to. award costs or compensation-, to -the, special guardian was that ..-contained, in;the sections .of the.Code before cited. Under the provisions of the Code the surrogate had power when the decree was made upon a contested application for probate, or revocation. of probate of a will, to award costs, payable out of the estate or otherwise, to a special guardian appointed by the surrogate, but such costs, in addition to the disbursements where the trial does not occupy more than two days, should not exceed seventy dollars.

The final judgment was, therefore, erroneous in awarding to the special guardian a sum greater than seventy dollars and his disbursements.

So much of the decree as awards the sum of $250 to this respondent, special guardian, is modified so as to provide that $70 and the disbursements to be taxed, is hereto allowed to Samuel D. Sewards, special guardian herein for the minor, Anna Eristof, and, as so. modified, the decree is affirmed, without costs.

Van Brunt, P. J., Rumsey, Williams and Patterson, JJ., concurred.

Decree modified as directed in opinion, and affirmed, as modified,, without costs.  