In re the Estate of Schatten , 176 Misc. 406 ( 1941 )

Henderson, S.

The petitioner applies under the provisions of section 231-a of the Surrogate’s Court Act for the fixation of his compensation for legal services rendered the estate of which he is an executor. Legal services rendered by an executor in connection with his executorial duties may not be the subject of such a proceeding. Compensation therefor may be fixed and allowed only upon a judicial settlement of his account under the provisions of section 285 of the Surrogate’s Court Act.

Prior to the addition of new matter in the first paragraph of the latter statute (formerly Code Civ. Proc. § 2753) by the revision of 1914 (Laws of 1914, chap. 443), an executor could not be allowed compensation for his own services as attorney in the affairs of the estate. (Lent v. Howard, 89 N. Y. 169, 179; Young v. Barker, 141 App. Div. 801, 808; Matter of Daly, 180 id. 307; affd., 223 N. Y. 671. See 1914 revisers’ note to Code Civ. Proc. § 2753.)

Section 285 of the Surrogate’s Court Act is the only authority for allowing compensation to an executor for legal services rendered by him to the estate of his testator. It directs that such allowance, if any, be made upon the settlement of his account. Hence application therefor may not be made under section 231-a which provides for adjudication of matters between attorneys and their clients. (Matter of Young, 156 Misc. 801, 802.)

Petition dismissed without prejudice to an application for an appropriate allowance upon the settlement of the petitioner’s account.