In re the Accounting of Genovese

Lewis, P. J. On this accounting proceeding, the Surrogate held, among other things, that the executor’s attorney had received excessive fees to the- extent of $2,707.41. Reargument was granted by this court to consider the question of whether the executor’s surcharge and the refund directed to be made by the attorney of the excess fees should be limited to the amount [741] necessary to pay the proportionate share of the objecting parties only. Under the decree appealed from, the entire sum of $2,707.41 was ordered repaid by the attorney, and the executor was surcharged in a like amount, notwithstanding that objections to the payments had been filed on behalf of but four of the eight legatees interested in decedent’s estate. Appellants contend that under the decisions of this court in Matter of Ellensohn (258 App. Div. 891) and Matter of Dempsy (259 App. Div. 1083), such refund and surcharge should be restricted to an amount sufficient to pay only the objectants. I am of the opinion, however, that under section 231-a of the Surrogate’s Court Act that contention cannot be sustained; and that the refund directed thereunder inures to the benefit of all those interested in the estate, regardless of whether or not all the parties had interposed objections. That section was not passed upon in the Ellensohn and Dempsy decisions (supra); and those cases should not be deemed controlling on the question at issue. Assuming it to be the general rule that a surcharge is limited to the amount of damages suffered only by objecting legatees (Matter of Garvin, 256 N. Y. 518; Matter of Roche, 259 N. Y. 458), that principle has no application where an attorney’s fees have been found to be excessive and a refund has been directed under section 231-a of the Surrogate’s Court Act. That section authorizes the Surrogate, at any time during the administration of an estate, to fix the compensation of an attorney for services rendered to the estate or its representative. It also expressly provides: “ In the event that any such attorney has already received or been paid a sum in excess of the fair value of his services as thus determined, the surrogate shall have power to direct him to refund such excess.” Obviously, the refund of 1‘ such excess ’ ’ means the entire excess, and not merely the part thereof represented by the objecting interests. It may be that the quoted provision was added to the section to overcome the decision in Matter of Rosenberg (263 N. Y. 357), in which it had been held that the Surrogate was without authority summarily to direct an attorney to refund the excessive fees. The statutory language, however, permits the Surrogate to order a refund of the entire excess. There is nothing contained therein which indicates that it was the legislative intent to restrict the refund to the “ proportionate ” excess sufficient to pay only those parties who objected. Moreover, the refunds, when recovered, become assets of the estate for administration like any others which may come into the hands of the fiduciary (Matter of Stemmler, 171 Misc. 318, 320); and, as such, they are available for distribution to all the beneficiaries. [742] The fact that nonobjecting parties may, under some circumstances, participate in benefits to the estate effected through the efforts - of others, has been recognized in Matter of Koch (184 Misc. 1, 6) and Matter of Ziegler (170 Misc. 748, 751). Similarly, the refund directed pursuant to section 231-a is not limited to the objecting interests. A contrary holding would result in the anomalous situation that an officer of the court, whose fee has been found to be excessive and who has been ordered to return such excess, could retain the exorbitant fee except for the portion represented by those parties who "objected. Such a result is illogical and is opposed to the explicit provisions of section 231-a. ' That section may be invoked in connection with the executor’s accounting, without the necessity of a separate petition or hearing. (Matter of Smith, 259 App. Div. 63, 66.) In the case at bar, notice was given to all the interested parties, there was substantial compliance with all the procedural requirements, and upon the filing of the objections to the amount paid for attorney’s fees, the proceeding, in effect, became one to determine the attorney’s compensation. As such, the provisions of section 231-a are applicable; and the Surrogate properly directed the refund of the entire excess of the attorney’s fee to the estate and surcharged the executor in the same amount. Matter of Sielcken (176 Misc. 235, affd. 263 App. Div. 866, motion for leave to appeal denied 288 N. Y. 739), referred to in the dissenting opinion, is not at variance with the views expressed herein. That case holds only that a reduction in the fees of the executor’s attorney, resulting from objections filed by the attorney for one of the legatees, was not such an increase in the assets of the estate as to justify payment of the fees of the legatee’s attorney out of the general assets of the estate. It does not involve the question under consideration; and does not affect the conclusion that the entire estate benefits from the refund directed under section 231-a of the Surrogate’s Court Act. We adhere to the decision of this court heretofore rendered; and the decree, insofar as appealed from, should be affirmed, with costs to' the successful parties who have appeared and filed briefs, payable out of the estate.