Opinion
February 27, 1964
Appeal from the Cayuga Surrogate's Court.
Present — Bastow, J.P., Goldman, Henry, Noonan and Del Vecchio, JJ.
Decree unanimously modified on the law and facts in accordance with the memorandum and as modified affirmed, without costs of this appeal to either party, and matter remitted to Cayuga Surrogate's Court for further proceedings in accordance with the memorandum. Memorandum: This appeal is from a decree of the Special Surrogate of Cayuga County which allowed commissions to the estate of the deceased executor, fees and disbursements to the attorneys for the deceased executor and judicially settled and allowed the account as filed. Oral objection to the accounting, the allowance of commissions and attorneys' fees was made on the return day of the citation. That portion of the decree fixing and allowing commissions and settling the account was entirely proper. As to the attorneys' fees and disbursements however the Special Surrogate had nothing before him upon which to base a determination. Even though no formal objections were filed the oral objection made required that claims for attorneys' fees be supported by some proof. (See Matter of Kittelberger, 4 A.D.2d 218, 226.) The decree should therefore be modified by striking that part which directs payment of attorneys' fees and disbursements and the affected portions of the account altered accordingly without prejudice to the attorneys for the deceased executor to apply for a reasonable attorney's fee and disbursements in a proper proceeding upon proper papers or proof, if so advised.