In re the Judicial Settlement of the Account of Proceedings of Stoddart ( 1940 )

Proceeding for the judicial settlement of the account of proceedings of respondent, as administratrix, etc. On the application of the administratrix to settle her accounts, respondents, a brother, sisters, nephews and nieces of decedent, filed objections claiming that the administratrix was not the wife of the decedent. The matter was referred to a referee to take proof and report. The referee found in favor of the administratrix and the court, by the order appealed from, affirmed his report and supplemental report. The decree, from which the objectants also appealed, fixed the referee’s fees at $1,200, and the stenographer’s fees at $422.10, and directed that these amounts, together with the costs and expenses, be taxed to the extent of $984.50 against the distributees who appeared and filed answers in the proportion that the respective shares of such distributees bear to each other, the amount thereof to be deducted from the distributive shares of such objectants. Order of Kings County Surrogate’s Court confirming the report and supplemental report of the referee unanimously affirmed, without costs. No opinion. Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur. Decree of the Kings County Surrogate’s Court modified (Surr. Ct. Act, § 309) by reducing the referee’s allowance to $750; by striking out the provisions directing that the referee’s allowance, stenographer’s fees, costs and expenses be paid by the distributees, and by inserting a provision directing that such allowance, fees, costs and expenses be paid out of the estate. As so modified, the decree is affirmed, with costs to all parties filing briefs, payable out of the estate, and the matter is remitted to the Surrogate’s Court for the entry of a decree accordingly. In our opinion the allowance to the referee was excessive, and it was an improper exercise of discretion to direct that the referee’s allowance, stenographer’s fees and costs and expenses be taxed against the distributees personally. Carswell, Johnston and Adel, JJ., concur; Lazansky, P. J., and Hagarty, J., concur except as to that part of the modification which directs that the referee’s allowance be reduced to $750, as to which they dissent and vote to affirm the decree on the ground (1) that no question as to the amount of the referee’s allowance was raised by any of the parties on this appeal; and (2) that this question has been eliminated from the case by the stipulation of the parties set forth in the record at folios 1294 — 1299.