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(202 N.Y.S.) ing the application would be to incur unnecessary expense to the distributees. In Despard et al. v. Churchill et al., supra, the court, in order to carry out the intent of the testator, decreed that the assets within this state be remitted to the state of California, of which decedent was a resident, because certain provisions in the will, invalid under our law, were valid in California.

What I am asked to do is to quiet all question of the power of Vermont to levy a tax by giving it jurisdiction of the property. If the New York assets remain here, it is doubtful whether the tax could be lawfully collected. If they could be brought within the taxing jurisdiction of Vermont and actually within her state limits, the tax must be levied under her law. The far-reaching consequence of the approval of such action must be apparent, even to those unfamiliar with the intricacies of transfer tax litigation, Such procedure far exceeds any question of comity, and would create a system whereby each state would become the busy collection agent of another state in gathering its taxes. The property might be directed to be transferred from state to state, and depleted to the vanishing point by successive taxation. No good reason exists, so far as the administration of this estate is concerned, for the transfer of the assets to Vermont. The executors do not reside in that state; none of the legatees or beneficiaries demand that the assets be transferred; they acquiesce in the contention of the executors that they remain here. No question of marshaling of assets or debts exists. Vermont appears to be now amply secured for any tax due. One of the legatees—the Little Mothers' Aid Association-a New York charitable corporation, is entitled under the will to a legacy of $350,000 for the erection of a home. The granting of the relief sought by the tax commissioner of Vermont will prejudice a charitable corporation, which should be the special object of protection by our courts; for the provisions of the will require prompt compliance by this legatee with certain conditions, particularly the completion of the home within five years after testatrix's death. If the funds required to pay this legacy be administered through the Vermont probate court, delay will result in payment, and possible forfeiture of the legacy may take place.

It also appears that double commissions may be awarded to the executors, if the assets be transferred. All these facts justify a denial of the exercise of the discretion of the surrogate. Matter of Hollins, 79 Misc. Rep. 200, 139 N. Y. Supp. 713, affirmed without opinion 160 App. Div. 886, 144 N. Y. Supp. 1121, cited by counsel for the state of Vermont, is clearly distinguishable from the instant case. There it was held by Surrogate Fowler that the executors of the estate, in this state, of a decedent domiciled in England, might deduct from a legacy payable out of the American estate, a proportionate share of the succession tax imposed on the entire estate in England. The learned surrogate, in writing the opinion, said:

"It is generally true that the courts of this state will not go out of their way to aid a foreign state in the enforcement of its peculiar revenue laws." Matter of Hollins, 79 Misc. Rep. 200. 206, 139 N. Y. Supp. 713, 716.

The dispute was between the executors and a legatee, who attempted to escape a tax levied on her interest in England. The surrogate directed payment of the tax to prevent inequality and injustice among the various beneficiaries. In this case, and in other cases cited by the counsel for the Vermont tax commissioner, the contest was between the executor and the beneficiaries of the estate, and not directly between the estate and the taxing officials of the foreign state.

Submit order on notice accordingly. Decreed accordingly.

(121 Misc. Rep. 747)

In re PARSONS' ESTATE. *

(Surrogate's Court, New York County. December 3, 1923.) 1. Wills Ow402—Power of surrogate to grant statutory.

The power of the surrogate to grant allowances or costs is wholly stat

utory. 2. Wills Cw413–Surrogate not authorized to order payment of attorney's fees to

unsuccessful proponent not named as executor.

Under Surrogate's Court Act, § 278, providing that costs shall not be allowed to an unsuccessful contestant of a will, unless he is a special guardian or is named as executor in a paper propounded by him in good faith as a will, and section 231-a, added by Laws 1923, c. 526, authorizing the surrogate to fix compensation of attorneys, irrespective of the pendency of a proceeding, etc., the surrogate is not authorized to allow compensation to an attorney who unsuccessfully attempted to have a paper purporting to be a will admitted to probate on behalf of one of the lega

tees named therein. 3. Wills 416-Proper procedure to fix attorney's foos stated.

The proper procedure in an application to fix counsel fees in the probate of a will is by citation or order to show cause to the parties interested, and particularly to those whose funds bear the burden of the

charge, and not by notice of motion. In the matter of the estate of George W. Parsons, deceased. Application to fix compensation of attorneys. Application denied.

Zabriskie, Sage, Gray & Todd, of New York City (George Gray Zabriskie, of New York City, of counsel), for petitioners.

John G. Daniel, of New York City (Henry Woog, of New York City, of counsel), for administrator.

FOLEY, S. This is an application to fix the compensation of attorneys who unsuccessfully attempted to have a paper purporting to be a will admitted to probate on behalf of one of the legatees named therein. After a decision by Surrogate Slater, of Westchester county, denying probate, the petitioners took appeals to the Appellate Division and subsequently to the Court of Appeals, where the decision of the surrogate was affirmed. No allowance was made in the final decree denying probate to any party, or to any attorney representing a party, interested in the estate, except to the next of kin, who were the successful parties. The petitioners now seek to have this court fix their compensation and direct payment by the temporary administrator, appointed by this court, out of the funds now in his hands. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

App. Div. ---, 202 N. Y. Supp. 942.

Order affirmed

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(202 N.Y.S.) [1, 2] The power of the surrogate to grant allowances or costs is derived wholly from statutory provisions. Matter of Eddy, 207 App. Div. 162, 201 N. Y. Supp. 760, First Department, No. 1923; Matter of Welling, 51 App. Div. 355, 64 N. Y. Supp. 1025; Matter of Hendel, 106 Misc. Rep. 417, 176 N. Y. Supp. 262. Section 278, Surrogate's Court Act (Laws 1920, c. 928), provides that costs “shall not be awarded to an unsuccessful contestant of a will, unless he is a special guardian for an infant or incompetent, appointed by the surrogate, or is named as an executor in a paper propounded by him in good faith as the last will of the decedent." It further provides that:

"Where a person named as the executor in a will propounds the will for probate, such person so named as executor may, whether successful or not, in the discretion of the surrogate, be awarded costs and all necessary disburse. ments made by him and all expenses incurred in the attempt to sustain the will."

It should be noted that an allowance for costs or expenses to a proponent of a will is limited by this statute to one named therein as executor. The alleged will, in the present instance, was first offered for probate by one of the next of kin, and subsequently by one of the legatees, but not by the legatee represented by the petitioners here. The petitioners, therefore, do not come within the class of persons enumerated in said section 278, Surrogate's Court Act, to whom an allowance for counsel fees may be made in a contested probate proceeding.

Nor can I find any justification for making the allowance under the provisions of section 231-a, Surrogate's Court Act, added by chapter 526, Laws of 1923, in effect September 1, 1923. Prior to the enactment of this amendment, the power of this court to fix and determine the compensation of an attorney for services rendered to a representative of an estate and to direct payment thereof out of the funds of the estate had been established by judicial decisions. Matter of Smith, 111 App. Div. 23, 97 N. Y. Supp. 171; Matter of Rabell, 175 App. Div. 345, 162 N. Y. Supp. 218; Matter of Nauss, N. Y. Law Journal, May 28, 1920, affirmed 193 App. Div. 937, 184 N. Y. Supp. 938; Matter of Shipman, 116 Misc. Rep. 405, 189 N. Y. Supp. 894, affirmed 200 App. Div. 896, 192 N. Y. Supp. 950, affirmed 234 N. Y. 499, 138 N. E. 422. Where, however, disputes arose between an attorney and a client other than a representative of an estate, this court had no jurisdiction.

The general purpose of the revision of the Code in reference to Surrogate's Courts, made in 1914 (now embodied in the Surrogate's Court Act), was to centralize and unify all proceedings relating to estates in those courts and to put an end to the former practice, resulting in delay and expense in the settlement of estates, when the parties were remitted to other courts to have disputes determined. This purpose is set forth generally in the introduction to section 40, Surrogate's Court Act. Matter of Aldrich, 194 App. Div. 815, 185 N. Y. Supp. 715; Matter of Malcomson, 188 App. Div. 600, 177 N. Y. Supp. 238. In keeping with this general policy of expedition and unified jurisdiction, the Legislature, in 1923, enacted section 231-a, Surrogate's Court Act, which reads as follows:

"At any time during the administration of an estate, and irrespective of the pendency of a particular proceeding, the surrogate shall have power to hear an application for and to fix and determine the compensation of an attorney for services rendered to an estate or to its representative, or to a devisee, legatee, distributee or any person interested therein; or in proceedings to compel the delivery of papers or funds in the hands of such attorney. Such proceeding shall be instituted by petition of a representative of the estate, or a person interested, or an attorney who has rendered services. Notice of the application shall be given in such manner as the surrogate may direct. The surrogate may direct payment therefor from the estate generally or from the funds in the hands of the representative belonging to any legatee, devisee, distributee or person interested therein."

This amendment, which conferred plenary power upon the surrogate to dispose of disputes, incorporated into statute what had already been settled by the judicial decisions just quoted (Matter of Smith, supra), with reference to fixing the compensation of attorneys for representatives. In addition, it conferred upon this court power to determine disputes arising between attorneys and beneficiaries of funds administered in this court. It also eliminated any doubt as to the power of the surrogate to order substitution of attorneys and to compel delivery of papers or funds in the estate to a new attorney retained by a client. Under the language of this section, relief may also be obtained at any time during the course of the administration of an estate, and regardless of whether a particular proceeding is pending. The basis of the authority granted by this amendment is the existence of the fund in the process of administration under the supervision of the Surrogate's Court.

With this legislative intent in mind, I cannot find any authority in section 231-a, Surrogate's Court Act, for allowing compensation out of the funds belonging to other persons, to attorneys for one named as a legatee in a paper which failed of probate as the decedent's will. Of course, cases may occur where the services of counsel for a beneficiary, resulting in advantage to the estate, may properly justify an allowance out of the estate generally, for example, where compulsory accountings are obtained, and funds converted by an executor or administrator are recovered through the efforts of counsel for a beneficiary. But, in this estate, the services in no way inured to the benefit of the estate.

[3] Incidentally, it should be pointed out that the proper procedure in an application to fix counsel fees is by citation or order to show cause to the parties interested, and particularly to those whose funds bear the burden of the charge, and not by notice of motion. Matter of Rabell, supra.

Application denied. Settle order on notice.
Ordered accordingly.

(202 N.Y.S.) (122 Misc. Rep. 95)

SYRACUSE MORTGAGE CORPORATION V. KEPLER et al.

(Supreme Court, Onondaga County. December 22, 1923.) 1. Discovery 47—Plaintiff held not entitled to take deposition before trial of defaulting defendant as "adverse party."

Under Civil Practice Act, $ 288, providing for taking of deposition of an "adverse party" before trial, a plaintiff is not entitled to take testimony before trial of a defendant who defaulted in answering, for the purpose of prosecuting the action against his codefendant, who has answered, unless circumstances are present which permit the examination of any person as witness before trial.

[Ed. Note.-For other definitions, see Words and Phrases, First and

Second Series, Adverse Party.) 2. Discovery 54–Examination before trial without notice to adverse party de

nied.

Where notice of examination of defaulting defendant before trial was not served on answering codefendant, the testimony could not, under Civil Practice Act, $ 303, be used against such answering defendant at the trial, and the taking of testimony should not be permitted, since the primary purpose of taking depositions is for use as testimony at the trial, and it should not be allowed for the sole purpose of putting parties in possession of the facts, to prevent surprise at the trial, unless the statute clearly authorizes it. Action by the Syracuse Mortgage Corporation against Jesse S. Kepler and Milton O. Kepler. On motion to vacate notice to examine defendant last named before trial Motion granted.

Bailey, Oot & Ryan, of Syracuse, for the motion.
Costello, Cooney & Fearon, of Syracuse, opposed.

CHENEY, J. [1] This action is brought to recover a judgment against the two defendants, upon the theory that they were partners when the liability was incurred. The defendant Jesse S. Kepler has answered, denying the copartnership. Defendant Milton o. Kepler has not answered, but is in default. Plaintiff has served notice for the examination of defendant Milton 0. Kepler before trial, pursuant to section 288 (as amended by Laws 1920, c. 926) and section 290 of the Civil Practice Act; the notice designating, among other matters upon which said defendant was to be examined, whether or not the defendants Jesse S. Kepler and Milton O. Kepler were copartners during the period mentioned in the complaint, and as to the particulars of the various transactions alleged as the basis of the cause of action sued upon, in order to determine whether or not they were copartnership liabilities. Defendant Milton O. Kepler moves to vacate the notice under section 291 of the Civil Practice Act (as amended by Laws 1920, c. 926), upon the ground that he is not an adverse party within the meaning of that term as used in section 288, Civil Practice Act, and that none of the circumstances permitting the examination of any other person are present in this case.

It is also urged that the defendant Milton O. Kepler was not served with a sutpæna requiring his attendance as required, in the case of a witness at any rate, by section 299, Civil Practice Act. It is probably For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

202 N.Y.S.-13

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