In re the Estate of Davis

Order so far as appealed from modified in accordance with the memorandum and as modified affirmed, without costs of this appeal to any party. Memorandum: We conclude that this proceeding is under section 231-a of the Surrogate’s Court Act. Respondent attorneys have been awarded an allowance for services and disbursements growing out of their employment by the former administratrix, Frances M. Lawson. Although, on appeal from the decree of the Surrogate’s Court of Niagara County awarding letters of administration to her, this court reversed the decree on the law and remitted the matter to the Surrogate’s Court, with directions to issue letters to the present appellant herein (sub nom. Matter of Holmes, 265 App. Div. 1033), nevertheless the closeness of the question involved is indicated by the dissent in this court and the affirmance by the Court of Appeals in a four to three decision (291 N. Y. 261), of the decision of this court. In awarding to respondents the allowance herein, from which this present appeal has been taken, the Surrogate necessarily determined that the services were beneficial to the estate as a whole, and in fixing the amount evidently considered, not only general services rendered to the former administratrix in the course of the administration of the estate, but also those *899rendered to her on the appeal to this court and the Court of Appeals. We approve that determination. The conclusion that the services so rendered by respondents were beneficial to the whole estate is fortified by the fact that although the decision of the Court of Appeals was adverse to the claim of Frances M. Lawson to the right of administration, nevertheless she was awarded by that court costs payable out of 'the estate. We do not find the amount awarded for respondents’ services excessive, but believe, however, that since the expenses of printing the record and brief on appeal to the Court of Appeals were proper items of disbursements, they must be deemed to have been included in the bill of costs taxed by Frances M. Lawson pursuant to the decision of the Court of Appeals. Accordingly the order is modified by eliminating therefrom these two items amounting to $46.56, and as so modified, affirmed, without costs of this appeal to any party. All concur. (The portion of the order appealed from grants an extra allowance to attorneys for a former administratrix.) Present — Taylor, P. J., Dowling, Harris, Larkin and Love, JJ.