Opinion
November 29, 1957
John L. Skinner for proponent.
Frank Lawkins for Francis J. Parks and another, contestants.
The contestants in this probate proceeding request that the temporary administrator be directed to pay the stenographer's fees for minutes of the examination before trial in the examination of subscribing witnesses to the propounded instrument. The application is opposed by the estate.
Section 275 of the Surrogate's Court Act provides that costs in this court "shall be awarded in special proceedings in surrogate's court solely in accordance with the following sections, and shall include all disbursements of the party to whom they are awarded, which might be taxed in the supreme court."
The above language has been interpreted by the courts as prohibiting any costs other than those expressly provided for in the statutes ( Matter of Watson, 241 App. Div. 842, affd. 264 N.Y. 697).
These costs are generally fixed at the termination of the proceeding to which they relate. The court in Matter of Manzi ( Tietjen) ( 155 Misc. 670, 673-674), said: "There is no provision in the law permitting the payment of any sum as costs or allowances except upon the entry of an order or a decree, and in only a single instance is the surrogate authorized to direct the payment of any disbursement whatsoever except in connection with the entry of a decree. This sole exception is found in the last sentence of the second paragraph of section 278, in which it is provided that `the surrogate may order a copy of the stenographer's minutes to be furnished to the contestant's counsel, and charge the expense thereof to the estate, if he shall be satisfied that the contest is made in good faith'."
Again in Matter of Mackenzie ( 155 Misc. 822, 824), the court in commenting on the above statement in Matter of Manzi Tietjen ( supra) said: "This analysis demonstrated to its [the court's] own satisfaction at least, that no authority exists for the allowance of any disbursements prior to the termination of a proceeding, except to authorize the furnishing to contestants of a copy of the minutes of trial if satisfied of the bona fides of the contest".
It is noted that in the last quotation the court referred to the minutes which may be furnished to the contestant under section 278 as minutes of the trial.
It is therefore this court's opinion that any allowance by way of costs to the contestant prior to the decree for the payment of stenographer's minutes of an examination before trial or examination of subscribing witnesses would be premature. Accordingly the relief at this time is denied.
If the contestant is successful, the court may, in its discretion, allow such costs as are permitted by statute upon the signing of the decree herein.
The temporary administrator is directed pursuant to section 30 of the Surrogate's Court Act, to pay to the official stenographer, from the estate, his fees for the transcribing of minutes supplied to the court.
Settle order on five days' notice.