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Matter of James

Appellate Division of the Supreme Court of New York, Second Department
Jun 22, 1942
264 App. Div. 885 (N.Y. App. Div. 1942)

Opinion

June 22, 1942.


Order of the Surrogate's Court of Putnam County granting an allowance to an unsuccessful party in the above-entitled proceeding to construe a will, and directing the allowance to be paid to said party's attorneys, pursuant to section 278 of the Surrogate's Court Act, affirmed, with ten dollars costs and disbursements to the respondents, payable out of the estate. The discretion vested in the surrogate to grant such allowance is not confined to cases where the party requesting the allowance has been successful in the construction proceeding, or where the estate has benefited financially. Although such matters may be proper factors motivating the exercise of the surrogate's discretion in granting an allowance in a given case, their nonexistence will not preclude an allowance. A party instituting a construction proceeding, in good faith, to resolve a justifiable doubt, caused by the language employed in the will, as to the testator's intent, may be compensated out of the estate for his expenses, although he be unsuccessful in the proceeding, and an allowance to him in a reasonable amount is not an abuse of the discretion vested in the surrogate. Lazansky, P.J., Carswell, Johnston, Adel and Close, JJ., concur.


Summaries of

Matter of James

Appellate Division of the Supreme Court of New York, Second Department
Jun 22, 1942
264 App. Div. 885 (N.Y. App. Div. 1942)
Case details for

Matter of James

Case Details

Full title:In the Matter of the Petition of BURTON W. JAMES to Obtain Order…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 22, 1942

Citations

264 App. Div. 885 (N.Y. App. Div. 1942)

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