The decree of the surrogate directed the appellants to pay to the respondent the sum named therein *Page 308 as an allowance to him for his services to the executors and his disbursements. This allowance was in favor of the attorney as against his clients, and it is at least very questionable whether any time to appeal begins to run against such an order.
The question arising in such a case relates to the jurisdiction of the surrogate and could properly be raised by a motion to set aside the order upon that ground. If void, it should have been vacated for that reason, and an appeal lies from an order denying the motion to vacate. (Kamp v. Kamp, 59 N.Y., 212;Schaettler v. Gardiner, 47 id., 404.) The surrogate, having full power to modify or strike out the objectionable features of the decree if it was void, should have granted the motion. (Vreedenburgh v. Calf, 9 Paige, 128; Sipperly v. Baucus,24 N.Y., 46.)
The question as to the validity of the order depends upon the power of the surrogate. The surrogate's court is one of limited jurisdiction, and is confined to such proceedings and the exercise of such powers as are given by the express terms of statutes, and as are incidental thereto. (Bevan v. Cooper,72 N Y, 317.) The power of the surrogate in respect to allowances upon the settlement of estates is conferred by chapter 362, section 8, Session Laws of 1863, which declares, that: "On the settlement of the account of an executor or administrator, the surrogate shall allow to him for his services, and if there be more than one, shall apportion among them, according to the services rendered by them respectively, over and above his or their expenses. * * And there shall also be allowed on each settlement such sum for counsel fee thereon and preparing therefor as to said surrogate shall seem reasonable, not exceeding the sum of ten dollars for each day engaged therein." It will be noticed that the allowance is to be made "to him;" that is, to the executor or administrator, and not to his counsel, nor against the executor or administrator. There is no authority whatever which warrants a decree in favor of the executor's counsel against the estate which is represented *Page 309 by the executor or against the executor as such. Previous to the statute cited an executor could not charge the estate for a counsel fee, upon the final settlement of his accounts or for drawing up the same in proper and legal form upon such settlement. (Burtis v. Dodge, 1 Barb. Ch., 77.) Such charges for services to an executor are against him individually and not as executor. (Austin v. Monroe, 47 N.Y., 360.)
The act of 1863 has not altered the rule and created a liability of the estate to counsel. It was evidently intended to enable the executor or administrator to charge the estate for such counsel fees as he was obligated to pay upon an accounting, at the rate prescribed by law. It has been adjudicated that the surrogate, except in the city and county of New York, has no authority to award counsel fees. (Reid v. Vanderheyden, 5 Cow., 719; Burtis v. Dodge, supra; Devin v. Patchin,26 N Y, 441.) He can only award taxable costs, and it is error to allow a sum in gross. (Reed v. Reed, 52 N.Y., 651.)
We are not referred to any precedent or reported case which authorizes a surrogate to allow counsel fees against an executor or administrator; and the claim of the respondent being against the executors individually, the estate cannot be made liable except within the statutory limit. To hold otherwise would give to that officer the power to grant allowances, without any limit, to the detriment and waste of estates, and in violation of the express terms of the statute. As no authority existed by statute or otherwise to make the allowance in question, the order was void for want of jurisdiction and should have been vacated.
As the surrogate acted without authority and exceeded his jurisdiction in making the allowance to the respondent, the motion made should have been granted, and the General Term erred in modifying the order. Both of the orders should therefore be reversed, and the appellant's motion must be granted, with costs of each appeal.
All concur.
Ordered accordingly. *Page 310