Opinion
December, 1914.
Miller, King, Lane Trafford, for Union Trust Company.
Charles W. Dayton, for Rosalie Avery and Josephine L. Burdette.
J. Brownson Ker, special guardian, and attorney for Grace H. Swink.
The special guardian is allowed $600 to be paid from the fund which is the subject of this account.
Its allowance is made under section 2748 of the Code of Civil Procedure, which is as follows: "A special guardian for an infant or incompetent shall receive a reasonable compensation for his services to be fixed by the surrogate, payable from the estate or fund, or from the interest of the ward therein, or from both in such proportion as the surrogate may direct."
The present proceeding was pending before September 1, 1914, when the recent revision of the practice took effect. In the Surrogates' Court of New York county it is held that costs and allowances in proceedings commenced before September 1, 1914, are to be adjusted in accordance with the provisions of the new law. Matter of Cunningham, 87 Misc. 172; Matter of Greer, N YL.J., Oct. 21, 1914.
Neither in that court nor in the court of any surrogate of the state has there been any intimation against the correctness of the view contained in the cases cited supra. Doubt has been expressed by that court as to whether the direction contained in the section quoted supra should be obeyed. Matter of Seabury, 87 Misc. 241; Matter of Stevenson, N.Y.L.J., Nov. 7, 1914; Matter of O'Day, 88 Misc. 408.
There is a general duty to follow the decision of another court of equal jurisdiction, if such decision has been distinctly made; while no duty is imposed to adopt from any such court a decision, however definite, which proceeds from a doubt.
Decreed accordingly.