In re the Accounting of Plumb

Appellant, an attorney, appeals from a decree of the Surrogate’s Court of Dutchess County, which fixed the amount of his fees, pursuant to section 231-a of the Surrogate’s Court Act. Appellant was not the attorney for respondents, but procured the probate of a will which had been destroyed after the death of the testatrix. As the result of his services, appellant’s client and a legatee named in the will obtained shares in the estate which they would not have received if the deceased had died intestate, at the expense of the distributees who would have shared decedent’s estate, had she died intestate. There was testimony before the Surrogate, which he may have credited, that appellant had agreed to render services to his client for a nominal fee, to be paid from the estate. Under such circumstances we are unable to say that the allowance made to the appellant was inadequate, or that the determination made by the Surrogate constituted an abuse of discretion. (Cf. Matter of Winburn, 160 Misc. 49; Matter of Bardol, 6 N. Y. S. 2d 46.) Decree unanimously affirmed, without costs. Present — Nolan, P. J., Johnston, Adel, Sneed and Wenzel, JJ.