Opinion
December 22, 1952.
Appeal by the incompetent and his two brothers from an order denying their application to vacate a prior order insofar as it granted an allowance to an attorney for services rendered to the petitioner in the incompetency proceeding and to the committee after she was appointed but before she qualified. Order reversed on the law, with $10 costs and disbursements, payable out of the estate, and motion granted, without costs, and without prejudice to renewal of respondent Murphy's application on proper notice. It is not disputed that notice of the presentation of the petition for the appointment of a committee was served on the three appellants, who thereafter appeared in the proceeding. However, notice of the attorney's application for the allowance for services was not given to appellants, but only to the committee, the temporary guardian and receiver of the incompetent, and an attorney who appeared for the incompetent's wife in connection with a certain motion. In our opinion, notice of the application for the allowance to be paid out of the estate should have been given to appellants. (Civ. Prac. Act, §§ 1360, 1373, 1381, subd. 3; Rules Civ. Prac., rule 288.) Nolan, P.J., Carswell, Johnston, Adel and Wenzel, JJ., concur.