In re Gates

This is the first occasion I have *146had to examine into the question of costs and allowances in this court. I have now given it some consideration, and, without going into any minute history of the subject, I find that before the adoption of the Revised Statutes, Surrogates had no power to award costs, and that an order awarding costs was cora/m non judice and void. (Reid v. Vanderheyden, 5 Cow. 719.) On the adoption of the Revised Statutes, however, power to award costs in cases of contests before them was given, but such costs had to be taxed at the rates allowed in the Court of Chancery for like services. (Halsey v. Van Amringe, 6 Paige, 12.) In 1837, an act was passed directing such costs to be taxed at the rates then allowed in Courts of Common Pleas, and such is still the law. (Devin v. Patchin, 26 N. Y., 441)

In the case of Halsey v. Van Amringe, (supra,) the Chancellor held that the Surrogate was not authorized by the Revised Statutes to make an arbitrary allowance for services and counsel fees, to be paid by one party to the other, without reference to the taxable costs allowed for similar services in other courts, and the doctrine is reaffirmed in 1 Barb. Ch. 77, and in Lee v. Lee, (16 Abb. Pr. 127.)

The claim of Mr. Romer being for services rendered on behalf of the proponents of the will during the contest relating thereto, does not constitute him a creditor of the intestate, so far as this claim is concerned. The only creditors to whom I am authorized to decree payment on a final settlement are those whose claims arise on contracts made with the deceased. Whatever claim he may have in this regard is against the administrator, and I have no power, on this or any accounting, to decree its payment. The order allowing Mr. Romer a gross sum for his costs and services is wholly unauthorized by any statute I have been able to find, and it was not in *147the power of the parties to the litigation to make an agreement in reference thereto, on which he could base a claim against the estate of the deceased. Again, this order under which Mr. Bomer claims, is invalid, for the reason that in a proper case the Surrogate can only-award costs to - a party, and not to counsel of parties, and then, only in the mode and to the extent allowed by the statute. (Wilcox v. Smith, 26 Barb., 316.) In this last case, it seems that allowances to counsel were made by agreement of counsel and parties, and were held void.

In the case of Devin v. Patchin, above referred to, it appears that the Surrogate of Hew York directed a gross sum of $500 to be paid to one of Mrs. Pat chin’s counsel, and a gross sum of $150 to another. He also directed the gross sum of $500 to be paid to one of Mrs. Devin’s counsel, and the like sum of $500 to another. There was an appeal taken from the decree on other questions, but none from the orders awarding these allowances. These orders seem to have been acquiesced in, which is tantamount to a positive agreement of the parties as to these allowances. In that case, the allowances to counsel exceeded the amount of personal estate, as sworn to in the petition for letters of administration. Although these orders in regard to costs were not appealed from, yet the Court of Appeals took occasion to review them, saying that that court could not permit them to go unnoticed, and declared them illegal and unauthorized, and held that Surrogates could not award costs to any person not a party before them, and that they could not lawfully act as almoners of the estate of deceased persons. There is this serious objection to making these arbitrary allowances: where a Surrogate makes such allowances, even by consent of counsel, and they are paid by the legal representative, and credited to him in his accounts, as finally rendered, if objected *148to by any party interested, they must be stricken out and disallowed, and he must account for and pay the same into the fund, although by so doing he has to pay them out of his own pocket. Again, ordinarily, a Surrogate may punish a party for contempt, who refuses to obey a legal order made by him. Oan this Oourt punish a party for contempt, or revoke his letters, because he refuses to obey an illegal order ? The statute gives this power to punish for contempt, only in case of disobedience to lawful orders.

I am aware that a practice obtains in many of the Surrogates’ Courts, in various counties, of making such allowances, based on the agreement of opposing counsel, which practice has doubtless sprung from the fact that the existing laws make no suitable provision for costs in these courts; and, although my convictions as to the proper construction of the statute, and as to my duty in this respect, may be distasteful to the bar generally, I must yet, in my judicial capacity, declare these convictions, in order that it may be understood that hereafter I can only award costs in pursuance of the provisions of the statutes, as construed by courts to whose decisions it is our duty to submit.

I have carefully considered the whole subject, and have deliberately arrived at this result. My disposition is to be liberal to counsel, but, in order to be so, I cannot be expected to disregard the plain provisions of-statutes. and the decisions of the highest judicial tribunal of the state.

The application of Mr. Eomer is denied.