In re the Estate of Hedrick

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 1036 established under the decedent’s will (Matter of Jackson, 47 Misc 2d 931, affd 25 AD2d 950), and benefited the estate by clarifying the said will (Matter of Clark, 54 Misc 2d 1024, affd 30 AD2d 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 AD2d 1013). The matter is remitted to the Surrogate to determine whether, and in what amount, appellant should be allowed counsel fees. (Appeal from decree of Erie County Surrogate’s Court —will construction.) Present—Cardamone, J. P., Simons, Mahoney, Dillon and Witmer, JJ. [80 Misc 2d 766.]