#### The New York Life Insurance and Trust Co., Executor, Etc., Plaintiff, *v.*Letitia C. Sands et al., Defendants.

(Supreme Court, New York Special Term,

February, 1899.)

Guardian ad litem — Allowance — Payable from infant’s share only.

The power of the court to award reasonable compensation to the guardian *ad litem*of an infant is not limited to the Code allowances of costs. Where, however, infants’ interests in an estate are limited to mere income, guardians must be paid therefrom and the court cannot compensate them from a fund which belongs to other parties.

Application for final judgment.

Duer, Strong & Jarvis, for plaintiff.

George Waddington and Albert R. Genet, guardians *ad litem,.*

Young, Verplanck *&*Prince, for defendant Edith C. Rhinelander.

*253R. E. Robinson, for defendants John Campbell Smith and Augustine Jacquelin Smith.

John Mason Knox, for defendant Eliza R. Allien.

Edo E. Mercelis, for Henry E. Coe.

Pennington Whitehead, for defendant John Campbell.

Russell, J.

All of the questions, on this application for final judgment, can be disposed of without much difficulty, except the application of the guardians *ad*litem, for large sums by way of compensation for their services in that capacity. If the infants whom they represent were entitled to receive considerable shares of the large estate involved in the controversy, the court might, upon proper proof, compensate the guardians *ad litem*for services which were meritorious and valuable. The interests of those infants have been amply protected so far as the court can judge from the proceedings presented, by the provisions to be embedded in the final judgment separating sufficient property to insure the satisfactory payments of the considerable incomes coming to them. The costs and allowances which can be awarded to the guardians are, in view of the limits imposed by law, having due regard to the allowances which must be made to the other parties, entirely inadequate to compensate those guardians for their services.

But what right has this court to go beyond the provisions of law regulating the amounts to be awarded for costs- and allowances, and decree compensation to guardians for infant defendants out of the property belonging to the other parties in the litigation ? The services were rendered for the infants and, so far, their value constitutes just claims against the property of the infants protected by the efforts of those guardians. The shares of the other parties, however, are burdened in no manner by the claims for services to the infants, even though those services produced a success which was beyond the terms the other parties were willing to accord. The only indemnity which that success brings is to be found in the provisions for costs, including allowances, payable largely, if not wholly, out of the proceeds going to the other persons.

The power of the court to award guardians reasonable compensation does not depend upon the allowances by way of costs fixed by the Code. Weed v. Paine, 31 Hun, 10.

*254It is inherent in the courts by. reason of its necessary care for the proper protection of the estates of those who are *non sui juris.*I have been cited to no provision of law or precedent, however, which justifies the payment of such compensation out the property of other persons. And I am confirmed in this view by the opinion of the late Chancellor Walworth as to equity powers in such cases. “ If any extra allowance is made to the guardian *ad litem*of the infants, it must be paid out of their share in the surplus; as nothing but the taxable costs can be charged upon that portion of the fund which belongs to other parties.” Union Ins. Co. v. Van Rensselaer, 4 Paige, 87.

In the present case the infants take no share of the estate, but only fixed incomes from portions of that estate separated for such a purpose. The court is not asked to charge the compensation of the guardians upon the accruing installments of income; but is requested to provide for such compensation by payments out of proceeds going to the other parties.

Final judgment is, therefore, directed, but with the reservation that the guardians *ad litem*may apply hereafter at the foot of this judgment, by motion or by an independent proceeding, in such manner as they may be advised, for a reasonable compensation in payment of their services.

Ordered accordingly.