New York Surrogate's Court, 1955

In re the Construction of the Will of James

New York Surrogate's Court · Decided December 2, 1955 · Fraukeuthaler

2 Misc. 2d 468; 147 N.Y.S.2d 873; 1955 N.Y. Misc. LEXIS 2192

Counsel

Knowlton Durham for American Seamen’s Friend Society, petitioner., Harold A. Scheminger for Christodora House of the Young Women’s Settlement, respondent and cross petitioner., William C. Chanler, Knowlton Durham and John B. Jessup for First Presbyterian Church of City of New York, respondent and cross petitioner., Francis A. Brick, Jr., and Richard 7. Holcomb for Society for Promoting the Gospel Among Seamen of the Port of New York, respondent and cross petitioner., Milbank, Tweed, Hope & Hadley for James Foundation of New York and others, respondents., Debevoise, Plimpton & McLean for Trustees of Amherst College and another, respondents., De Forest, Elder & Mulreany for Presbyterian Hospital in the City of New York, respondent., George N. Whittlesey for Children’s Aid Society, respondent., Webster, Sheffield & Chrystie for New York Public Library (Astor, Lenox and Tilden Foundations), respondent., Davis Polk Wardwell Sunderland & Kiendl for Union Theological Seminary in the City of New York, respondent., Hatch, Root, Barrett, Cohen & Knapp for Tuskegee Institute, respondent., Lord, Day & Lord for Metropolitan Museum of the City of New York, respondent., Hawkins, Delafield & Wood for American Museum of Natural History, respondent., Patterson, Belknap & Webb for American University of Beirut, respondent., Satterlee, Warfield & Stephens for Hampton Institute, respondent., Pandia C. Ralli for United States Trust Company of New York, as sole surviving executor of Arthur C. James, deceased, respondent., Mitchell, Capron, March, Angulo & Cooney for Board of Home Missions of the Presbyterian Church of the United States, respondent., Jacob K. Javits, Attorney-General, in his statutory capacity under section 12 of Personal Property Law and section 113 of Real Property Law.

Opinion of the Court

George Fraukeuthaler, S.

The court has undoubted power to allow to any party to the proceeding reasonable counsel fees and reimbursement of expenses incurred in connection with the judicial construction of the will by this court and the appellate courts (Surrogate’s Ct. Act, § 278). Matter of Hayden (200 Misc. 758) is not authority to the contrary. In that case, petitioners were not mentioned in the will, their status was immediately challenged, their efforts to prove their interest by extrinsic evidence were wholly unsuccessful, and their petition for construction of the will was dismissed (p. 759). Here the petitioners were explicitly named in the will, the motion to dismiss the petition was denied (119 N. Y. S. 2d 259) and the prayer of the petition was granted to the extent that the court judicially construed the will (130 N. Y. S. 2d 693). The making of an allowance does not depend upon the successful vindication of petitioner’s own interpretation of the will. (Matter of James, 264 App. Div. 885; Matter of Ahrens, 203 App. Div. 30.)

It is beneficial to the estate to have a definitive judicial interpretation of the will. The appeal to the Court of Appeals was by express permission of that court and hence it is idle to argue that there was no real question to be determined and no need to take any appeal. It is of benefit to the foundation to have a definitive decision with respect to the powers which the testator intended it to have and the duties which he intended the trustees to perform. The history of the litigation in this estate justified the persons named in the will in taking the initiative in the construction proceeding (cf. 86 N. Y. S. 2d 78).

In making the allowances the court has not attempted to compensate the attorneys for all legal services rendered by them to their respective clients but rather to appraise the value to *471the estate generally of the services performed in the construction of the will and it has limited the allowances to such amounts as the general estate should be required to pay. (See Matter of Charles, N. Y. L. J., Sept. 30, 1953, p. 596, col. 3; Matter of Havemeyer, N. Y. L. J., Nov. 6, 1952, p. 1073, col. 4.)

Allowances fixed and supplemental order signed.

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