Opinion
May 21, 1976
Appeal from the Erie County Surrogate's Court.
Present — Cardamone, J.P., Simons, Mahoney, Dillon and Witmer, JJ. [ 80 Misc.2d 766.]
Decree unanimously affirmed on the opinion of Surrogate's Court, Regan, S., with costs to all parties appearing and filing briefs payable out of the estate, and matter remitted to the Surrogate of Erie County for further proceedings in accordance with the following memorandum: Appellant did not make any application for counsel fees before the Surrogate and makes her first application for them before us on this appeal. We believe that the legal services rendered aided the Surrogate in his construction of the trust established under the decedent's will (Matter of Jackson, 47 Misc.2d 931, affd 25 A.D.2d 950), and benefited the estate by clarifying the said will (Matter of Clark, 54 Misc.2d 1024, affd 30 A.D.2d 638). Since the proceeding was instituted to resolve a justifiable doubt as to testatrix' intent occasioned by the language of the will, an allowance of expenses and reasonable counsel fees properly may be directed (SCPA 2302, subd 6; Matter of James, 264 App. Div. 885). Nevertheless, it is the policy of this court to have application for counsel fees first determined in the court of original instance (Matter of Ebright v Ward, 39 A.D.2d 1013). The matter is remitted to the Surrogate to determine whether, and in what amount, appellant should be allowed counsel fees.