Henry v. Superior Court

Paterson, J. On May 1,1891, Elle Ellen died, leaving a will, in which W. H. Kruger and S. M. McKay were named as executors. On May 9, 1891, P. Henry, petitioner herein, was appointed special administrator, and on the same day the persons named as executors filed a petition asking that the will be admitted to probate. The hearing of the petition was fixed for the eighth day of June, 1891, and due notice thereof was given. Before the day set for hearing, James Ellen Henry and Joseph Henry Saunders, grandsons of the decedent, filed an opposition, alleging that the will was executed under undue influence, and while the testator was wanting in capacity. Thereafter Kruger died, and on September 12, 1891, the court, on application of McKay, supported by affidavit, made an order that the special administrator pay to the attorneys of McKay, out of the funds of the estate in his hands, the sum of six hundred dollars for counsel fees, witness fees, and other expenses to be incurred in the trial of the issues pending. Thereupon the special administrator applied to the court for an order revoking the order referred to, on the grounds that it was made without notice, and that the court had no jurisdiction to appropriate the funds of the estate to such a purpose. The motion was. denied, and the administrator has sued out this writ of review to annul the order.

1. In In the Matter of Aaron, 5 Demarest, 362, the court held that costs in a probate proceeding could not be allowed to counsel; if allowed at all, they should be awarded directly to the parties themselves. And in Sharon v. Sharon, 75 Cal. 1, we held that “ suit money ” must be paid to the party for whose benefit it is awarded, and that an order directing payment to counsel who are not parties to the action is void.

[5712]. Section 2557 of the New York Code of Civil Procedure provides that costs in probate proceedings “ may be made payable by the party personally, or out of the estate or fund, as justice requires.” The powers conferred upon special administrators in that state by the provisions of the code are identical with those conferred upon special administrators in this state. In the Matter of Aaron, 5 Demarest, 362, holds that it was the duty of a special administrator simply to collect and preserve the estate; that he had no authority to pay debts; and that the court could not empower him to defray the expenses of a controversy over probate, unless expressly authorized to do so by the statute. In In the Matter of Parish, 29 Barb. 627, the court held that contestants, either for or against a will, have no claim for costs or expenses which can be paid out of the estate by the special administrator until after a decision has been made in the contest.