Opinion
September 30, 1987
Appeal from the Niagara County Surrogate's Court, DiFlorio, S.
Present — Dillon, P.J., Doerr, Boomer, Pine and Lawton, JJ.
Order unanimously reversed on the law without costs and application denied. Memorandum: The court lacked authority to direct payment of legal fees and disbursements to the attorneys for the purchasers of real property comprising the estate's sole asset. That the attorneys brought a petition to remove the executor provides no basis for an award of such compensation. They did not perform any duty in administering the estate which the executor defaulted in doing or neglected, nor were the purchasers devisees, legatees, distributees or persons interested in the estate. Accordingly, the Surrogate erred in holding that payment by the estate was authorized under SCPA 2110. Moreover, the legal services rendered by the attorneys for the purchasers did not result in an enlargement of the share of the estate's sole beneficiary (see, Matter of Graves, 197 Misc. 638; see also, Matter of Lounsberry, 226 App. Div. 291; Matter of Smith, 167 Misc. 95; Matter of Hirsch, 154 Misc. 736).
"The mere fact that an outside attorney, while preserving the interests of his own client, suggests a course of action which produces a saving to the estate (Matter of Kaufman, 169 Misc. 714, affd 256 App. Div. 1070; Matter of Wicks, 269 App. Div. 675), or forces the executor into action (Matter of Trescott, 199 Misc. 1087), or acts in conjunction with the executor's attorney but without retainer (Matter of Wadsworth, 250 App. Div. 11, affd 275 N.Y. 590) is not sufficient. Volunteers may not be compensated from the general assets of the estate." (Matter of Bellinger, 55 A.D.2d 448, 452.)
Although the decision underlying the order on appeal expresses the intention of the court to surcharge the executor an amount equal to the award of legal fees and disbursements made to purchasers' attorneys, the order itself makes no reference to a surcharge. Instead, it directs that the sum be retained by the attorneys from estate proceeds held by them in escrow. Since the order awarding legal fees and reimbursement of expenses is reversed, the moneys so retained must be refunded to the estate. No issue is presented on this appeal as to the propriety of any surcharge.