Opinion
July 12, 1962
Harold Ashare for Joseph Zak, coexecutor.
Reinitz Perry for Raymond Anderson, petitioner.
Daniel S. Lerner for Richard F. Anderson, coexecutor.
Timothy J. Healy for Ethel Nolan.
This is an application by the attorney for a coexecutor for an allowance for counsel fees and disbursements in the above-entitled will construction proceeding. The final decree in this proceeding was rendered on notice prior to the making of this application. No one, including this applicant, requested costs or allowances at or prior to the date of such decree and there is no direction in the decree that the matter of costs or allowances be reserved for supplemental decree.
Section 278 of the Surrogate's Court Act includes the following provisions:
"When the decree is made in a proceeding to construe a will, * * * the surrogate may, in his discretion, allow to an executor, * * * such sum as the surrogate deems reasonable for his counsel fees and other expenses necessarily incurred in such a proceeding * * *.
"In any proceeding the decree * * * may direct that the whole or any part of costs taxed or allowance made shall be paid to an attorney rendering services in such proceeding * * *.
"In the decree * * * the surrogate, in his discretion, may direct that the fixation of the amount of any allowance or grant of costs be reserved for supplemental decree".
Thus, unless the matter of granting costs or allowances is reserved for supplemental decree, the application of a party for the same must be made before or at the time of settlement of the decree. ( Matter of Heller, 33 Misc.2d 798; Matter of Rosenblum, 137 N.Y.S.2d 481.)
The application therefore is denied, without prejudice however to such attorney's right to be reasonably compensated for all services rendered to the representative (see Surrogate's Ct. Act, § 222,) and without prejudice to his having his compensation fixed and allowed in connection with any accounting proceeding, or in a proceeding under section 231-a of the Surrogate's Court Act, if necessary.