In re the Probate of the Will of Schell

Appellants have asked this court to review that part of a resettled order or decree of the Surrogate’s Court of Tompkins County which grants an allowance for counsel fees and disbursements to the petitioner in a proceeding brought by her to revoke a decree of the same court dated September 15, 1924, which admitted to probate the will of Richard M. Schell. Other questions in this case were before us on a prior appeal (272 App. Div. 210). Decedent died in Tompkins county on July 28, 1924. He was survived by his sister, the petitioner herein, who was his only heir at law and next of kin. In August, 1924, a petition was presented to the Surrogate’s Court for the probate of his will. *923Petitioner was cited in that proceeding but did not appear and a decree of probate was entered. In December, 1944, petitioner presented a petition to the Surrogate’s Court for an order revoking the decree of probate. After a trial of the issues the application was denied. After the denial of her application petitioner applied to the court for an allowance of counsel fees and disbursements. The Surrogate allowed her the sum of $6,000 for counsel fees and a further sum of $331.59 for disbursements. Petitioner was unsuccessful in the attempt to vacate the decree of probate and the Surrogate was without power to make any allowance to her for counsel fees or disbursements. The order or decree appealed from is reversed on the law and the application denied, without costs. Foster, P. J., Heffernan, Deyo, Bergan and Coon, JJ. concur.