In re the Probate of the Will of Brewer , 277 A.D.2d 1008 ( 1950 )

Appeal from an order of the Surrogate’s Court, Suffolk County, which modified and, as modified, confirmed the report of a referee and allowed respondent, an attorney, the sum of $3,500 for services rendered in an unsuccessful offering for probate of an instrument, prepared by petitioner-respondent for the decedent, in which he was named one of the executors. Order modified on the law and the facts by reducing the amount allowed petitioner-respondent to $2,000, and, as so modified, affirmed, with costs to parties filing briefs, payable out of the estate. In our opinion the record supports the finding below that petitioner-respondent acted in good faith in offering the instrument for probate; and an allowance to the unsuccessful proponent may therefore be made, in the Surrogate’s discretion, under section 278 of the Surrogate’s Court Act. (Cf. Matter of Staiger, 249 N. Y. 229, 234.) Under all the circumstances disclosed, however, the sum awarded was excessive. Nolan, P. J., Carswell, Sneed, Wenzel and MaeCrate, JJ., concur.