Opinion
Argued October 6, 1885
Decided October 13, 1885
E.A. Nash for appellant.
J.A. Stull for respondent.
The will of Milton Budlong, deceased, was presented to the Surrogate's Court of Monroe county for probate, and a special guardian was appointed for two infants who were the sole contestants. The contestants were unsuccessful and a decree was entered admitting the will to probate. A few days thereafter, on the ex parte application of the special guardian, without any notice to, or hearing by the other parties interested in the estate, an order was made by the surrogate allowing the special guardian $1,000 for his compensation, fees and disbursements as such special guardian, and ordered that sum to be paid by the special administrator out of the assets of the estate of the testator. From that order the special administrator and executors named in the will appealed to the General Term where the order of the surrogate was reversed, and then the special guardian appealed to this court.
The order of the surrogate was erroneous and should have been reversed for two reasons. First, it could not legally be made without notice to the other parties interested in the estate. It is a fundamental rule of law that the property of one cannot be taken and given to another without some notice and hearing, or opportunity to be heard; and this $1,000 could not be taken from those who were entitled to the estate, and transferred to the pockets of the special guardian without some notice and opportunity to be heard. Second, the special guardian was appointed to look after and protect the interests of the infants. He had no duty whatever to discharge in reference to the estate of the testator, and there was no authority whatever to order the compensation of the special guardian to be paid out of the estate. His compensation should either come from the infants or their estate, and if any part of the estate of the infants was before the surrogate or under his control, he could have ordered the compensation to be paid out of that, but not out of the estate generally. ( Union Ins. Co. v. Van Rensselaer, 4 Paige, 85; Gott v. Cook, 7 id. 521, 544.) The Code of Civil Procedure now regulates costs in Surrogates' Courts to be paid out of the estate; and an unsuccessful contestant of the probate of a will can generally have no costs payable out of the estate. But if he be a special guardian for an infant appointed by the surrogate, or is named as an executor in a paper propounded by him in good faith as a last will and testament, then although an unsuccessful contestant he may have costs out of the estate as specified in the Code. (§§ 2558, 2559 2560, 2561.)
We are, therefore, of opinion that the order of the General Term should be affirmed, with costs.
All concur.
Order affirmed.