The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-04-14
LAWYER VS.. ORPHAN.


SURROGATE CALVIN on THE RECENT DECISION
AS TO COSTS IN WILL cAsgs-wHEEE II NAY
WORK HARDSHIP.
According TO decision Of tho General Term oil the
Supreme Court, published exclusively in Wednesdays
HERALD, the Surrogate canpot allow costs to The de-
fcated party in wl Tho decision Is intended
to guard widows and orphans IRON tho cxiortions OF
lawyers who always ready TO contest Wills know
ing that il defeated their fees would OF tho
estate The decision out OF the contest tho
Will OF Eliza Hcarscy. Tho late Surrogate Hnchings
found against the contestants, but allowed $4,000 IN
lieu OF costs to their counsel out OF the estate The
win be carried to the Court Of Appeals II being
important to know what the present Surrogate, Sir.
CALVIN. thought OF the decision. u HERALD reporter
called on that official yesterday.
THE suRRoGArE's VIEWS.
Mr. CALVIN, In reply question, said that this de-
csion contrary to tho uniform practice OF he
Snrrogate's Court. and, he understood IT, contrary
tho practice recognized by the Court OF AppcnIs.
In the case Of Clapp VS.. Fullerton, 34th New York,
$780, the Court OF Appeals affirmed the judgment OF the
General Term which Affirmed the decision OF the Sur
rogate OF Washington county, but directed costs
OF both parties TO DO paid from tho estate In the
case OF Dupuy Woerz, SD New York, $50. which
appeal from tho judgment OF tho General Term
OF this district, tho Court affirmed a decree Of tho
Surrogate OF this county. Judge Rapalo, writing
tho unanimous opinion OF that Court, says, at page
SD
.srhe Judgment should DO aIir med. The questions
are not from difficulty. and have been presented
the part OF the contestants in good iaith They
have been argued IN this court with great learning ana
ability, and arc carefully and ably treated IN the opn
ION oil the learned Surrogate We think that the
teans were justified IN raising tho question, and that,
under all the circumstances, tho costs OF all parties IN
this court ana the courts below should DO pad out OF
the estate"
THE uEARsEY CASE ALLOWANCE
The learned Pfcsuing Justice of the General Term,
In tho OF Hearscy toward the close Of his opn
ION this languagc:-"Wc 90 not mean by this
suggestion TO Indicate that the viii In tins
improperly contested, but on the contrary, We think
that The contestants had probable cause 70 resist the
probate OF the will propoundcd and that heir contest
IN all respects Iatrly conducted. with regard to
this case and the question u has excited Surrogate
Gavin said
power 10 grant allowances to successful parties As
Inc General Term decision makes no distinction bc-
tween The prepayment and contestant where unsuccess
full, that decision shall be sustained II must deter
from tho performance OF their duty such
IN cases of contest The law requires executor TO
present the will for probate ana II IS obviously his
duly 10 attend TO It's probate though contested and II
the contest shall be successful and tho executor re-
qured to pay the expenses Of propound'ns the VIII
including the Ices OF hts counsel u Is manifest that
very lew persons would be willing TO accept such
trust at such q risk.
CONTESTS IN GOOD PATH.
The true rule undoubtedly Is this which was sug-
gescd by IN my decision In the Stewart Will case
that no person WAC should be unsuccessful Ia con-
test should receive compensation therefor out OF the
estate, unless IL entirely apparent that he has mado
tho contest IN good faith. no particular hardship
oil this decision Is that 1t makes no discrimination IN
favor Of trustee charged WITH the duty OF probatng
q will. The decision Of the General Term will DO
spectcd ms controlling the action OF this Court unless
II shall be reversed appeal Personally officially
the airmance Of the decision Of the Genera; Term
would relieve me ot embarrassing aud delicate re-
sponsbility, and shall most chccruly acqucsce in
tho interpretation OF the act OF 1870, though enter
tam very little doubt that the act 10 question was in
tended by the Legislature TO authorize allowances to
any and all parties any proceeding In this Court
the discretion oi the Surrogate.