In re Kraus , 4 Dem. Sur. 217 ( 1885 )

The Surrogate.

The issues raised by. a petition for the revocation of the letters of the administrator of this estate, and the answer thereto, were, on the 20th day of February last, sent to a referee, to take testimony in the premises and report the same with his opinion. The reference has been concluded, and the referee has prepared his report and opinion, but has not filed the same or delivered them to any of the parties. The petitioner now applies for an order which shall direct the filing of the report and the payment of the fees of the referee out of the assets of the estate.

In my judgment, the Surrogate is powerless to direct the referee to file-his report in advance of receiving his fees, and powerless to direct that any one of the parties to- the proceeding shall pay the referee before his report is filed (Greib v. Topping, 83 N. Y., 46 ; Perkins v. Taylor, 19 Abb. Pr., 146). If the referee shall see fit to file his report without exacting his fees, provision can be made, in the final decree or order that may hereafter be entered in this proceeding for the payment of those fees by such of. the parties hereto as may be found justly chargeable therefor.

And if any one of'the parties shall pay the referee, and it shall, at the termination of the proceeding, appear that such party ought not, under all the circumstances, to be charged with the expenses of the reference, a direction may be given for his reimbursement, and for payment of costs of reference, either out of the assets of the estate, or by some one of the parties hereto *as may seem just and proper.

Motion denied.