Halsey vs. Van Amringe and wife, 6 Paige Ch. 12

The Chancellor. The surrogate unquestionably erred, in this case, in deciding that the balance of the estate in the hands of the administrator was $1120,30, for which he was personally liable. The decretal order of the 17th of June, expressly declared and directed, that, in the statement of the accounts, the administrator was to be allowed his legal commissions; and in the absence of every thing in this case to show the contrary, I must presume that the direction in that decretal order was correct, whether such order was or was not final and conclusive, between the parties.

Independent of that order, however, the administrator was absolutely entitled to the allowance of his commissions, under the provisions of the revised statutes; and the surrogate had no discretionary power to withhold them, or to state a balance against the administrator excluding his legal commissions. It is not necessary now to inquire whether the court of chancery, upon a bill filed against an executor or administrator, has the right to disallow commissions where there has been a fraudulent mismanagement of the estate.

The surrogate takes no power by implication ; and the direction of the statute is positive that upon the settlement of the account of executors and administrators in a proceeding before him, the surrogate shall allow them certain specified commissions, for their services, over and above their expenses ; except in those cases where a specific compensation for such services is allowed by the will of the decedent. (2 R.

S. 93.) The appellant, therefore, had the same right to be credited his legal commissions for receiving and paying out the monies of the estate, as he had to be credited for monies paid by him for debts and funeral expenses. And the balance of the $1120,30, after deducting therefrom the allowance for commissions, was the amount of the estate remaining in the hands of the administrator, for which he is personally liable. The sentence or decree of the surrogate must, therefore, be modified accordingly.

The surrogate had a discretionary power to award costs to the next of kin, to be paid out of the estate, or to be paid by the administrator personally if his conduct had been such, in the opinion of the surrogate, as to make it proper that the costs should be personally charged upon him. But he could not award costs to be paid out of the estate of the intestate, if there was not sufficient remaining in the hands of the administrator to pay such costs, after crediting him with his legal commissions and disbursements in the discharge of his trust.

If this was a case in which it was proper that the costs of the next of kin should be charged upon the estate or upon the administrator personally, to the exclusion of the claim of the administrator for costs, the decree should not have directed the costs of the administrator to be paid out of the fund, but should have directed the costs of the next of kin to be paid out of the estate in the hands of the administrator, after crediting his commissions, and should have directed the balance of such costs to be paid by the administrator personally.

I have not, however, any thing before me on this appeal which can enable me to determine whether the administrator should be charged with, or allowed costs, upon the proceedings before the surrogate and the auditors.

From the examination of the decree appealed from, however, I am satisfied that the costs which have been taxed and allowed in this case, so far at least as counsel fees are included therein, are not such costs as the surrogate had any right to award to one party against the other, or to direct to be paid out of the estate of the decedent, under the provision of the revised statutes on this subject. (2 R.

S. 223, § 10.) In the ecclesiastical courts of England, costs are allowed in testamentary causes, to one party or the other, in the discretion of the court, as in the court of chancery ; and a regular tariff of fees for the proctors and advocates, and other officers of the court, is settled or sanctioned by the court from time to time. (See 2 Burns’ Eccl. Law, 8 ed. 267.) In this state, however, previous to the revised statutes, it had been settled by a decision of the court of probates, that no costs were recoverable in such cases. In the case of Davis v.

Gardner, before the judge of probates, on the 27th of March, 1813, it appears that an administrator was directed to pay into court the balance of the estate of the decedent in his hands, with costs. But the question of costs does not appear to have been discussed in that case ", and the direction to pay costs appears to be contrary to the settled practice of that court, appearing upon its records. In the case of Connell’s estate, 26th October, 1818, the question was examined and settled upon due consideration.

The appeal in that case was dismissed with costs, but upon a rehearing the decree was amended by striking out that part which related to the costs ; the reason of which alteration is thus stated in the record: “ Inasmuch as from investigation this court is satisfied that costs cannot be allowed here.” In the recent revision, the legislature have changed the rule of law in this respect, and have restored that which existed in the ecclesiastical courts of England at the time of the first settlement of this state.

Although no fee bill was expressly adopted, by statute, for the advocates and proctors in the surrogates’ courts, it was not the intention of the legislature to leave it to the several surrogates to make an arbitrary allowance for services and counsel fees, in each particular case, to be paid by one party to another, or out of the estate which is the subject of controversy, and without reference to the taxable costs allowed for similar services in other courts.

In the taxation of the costs and counsel fees of the proctors and advocates upon the settlement of the account of an executor or administrator before the surrogate, the taxable charges therefor cannot exceed those which are allowed by law to solicitors and counsellors in this court, in similar cases, The fees of the surrogate are fixed by the statute ; and the auditors’ fees are so limited by law that they cannot exceed $2 per day to each auditor, and are to be paid out of the estate of the decedent. (2 R. 8. 94.) The allowances to the proctors and advocates upon the hearing before the auditors, should be the same that are established by law, and the practice of this court, upon reference to a master to take an account in a similar case.

The decree of the surrogate must therefore be reversed, but without costs to either party, on the appeal.

And the proceedings are to be remitted to the surrogate with directions to tax the costs of the proctors and advocates of the respective parties upon the principles before stated, and to enter a final decree declaring that the amount of the estate of the decedent in the hands of the administrator, and for which he is personally liable, to be $269,16, with the interest thereon from the 26th October, 1833, and directing the surrogate’s fees, as liquidated by the former decree, together with his fees for entering the final decree upon the remittitur, to be paid out of the estate in the hands of the administrator, and that the residue of the fund be applied raieably for the payment of the costs of the respective parties, as the same shall be taxed and allowed by the surrogate.

See act of May, 1837, § 70, as to fees in surrogates’ courts.