§ 703. Notice of proceeding to appoint special guardian.— Where person, other than a minor, or the committee of the incompetent person, applies for the appointment of a special guardian, as prescribed in the last section, at least eight days notice of the application must be personally served upon the minor, or incompetent person, if he is within the state, and also upon the committee, if any, in like manner as a citation is required by law to be served. But except in a case specified in article sixteen of this code, the surrogate may, by an order to show cause, prescribe shorter time and direct the service of the order to be made in such a manner as he deems proper. The application may be made at the time of presenting the petition, and, in that case, the order to show cause may, in the surrogate's discretion, accompany or be included in the citation. [Code, § 2531, without change, except that the words "or be included in " are new; the order to show cause on the appointment of a special guardian is now generally included in the citation. The proposed amendment conforms the law to the practice.] ARTICLE XXI. COSTS AND FEES. Section 710. Costs, how made payable. 711. When awarded. 712. How awarded. 713. When the same as in supreme court. 714. When surrogate to fix amount of costs. 715. Costs on order. 716. Additional allowance in settling accounts. 718. Fees of appraiser. 719. Fees of other officers and witnesses. 1 720. Fees of the surrogate. 721. When fees not to be charged. 722. Annual report of fees. Section 710. Costs, how made payable.-Except where special provision is otherwise made by law, costs awarded by a decree may be made payable by the party personally, or out of the estate, or fund, as justice requires; but costs other than actual expenses cannot be awarded to be paid out of an estate or fund which is less than one thousand dollars in amount of value. [Code, § 2557, without change.] § 711. When awarded.-The award of costs in a decree is in the discretion of the surrogate, except in one of the following cases: 1. Where special directions respecting the award of costs are contained in a judgment or order made on an appeal from the surrogate's determination, or on a motion for a new trial of questions of fact tried by a jury; in either of which cases costs must be awarded according to those directions. 2. When a question of fact has been tried by a jury; in which case, unless it is within the foregoing subdivision, the decree must award costs to the successful party. 3. When the decree is made on a contested application for probate, or revocation of probate of a will, costs, payable out of the estate or otherwise, shall not be awarded to an unsuccessful contestant of the will, unless he is a special guardian for an infant appointed by the surrogate, or is named as an executor in a paper propounded by him, in good faith, as the last will of the decedent; but the surrogate may order a copy of the stenographer's minutes to be furnished to the contestant's counsel and charge the expenses thereof to the estate if he shall be satisfied. that the contest is made in good faith. [Code, § 2558, without change.] § 712. How awarded.-Costs when awarded by a decree include all disbursements of the party to whom they are awarded, which might be taxed in the supreme court. The sum allowed for costs must be fixed by the surrogate, and inserted in the decree. [Code, § 2559, without change.] § 713. When the same as in supreme court.—Where a question of fact has been tried by a jury, the costs awarded against the unsuccessful party are the same as the taxable costs of an action in the supreme court. The costs of an appeal, where they are awarded in a surrogate's court, are the same as if they were awarded in the supreme court. [Code, § 2560, without change.] § 714. When surrogate to fix amount of costs. In a case other than one of those specified in the last section, the surrogate, on rendering a decree, may in his discretion fix such a sum to be allowed as costs in addition to the disbursements, as he deems reasonable, not exceeding, where there has not been a contest, twenty-five dollars, or where there has been a contest, seventy dollars; and, in addition thereto, where a trial or hearing on the merits before the surrogate necessarily occupies more than two days, ten dollars for each additional day; and where a motion for a new trial is made before the surrogate, if it is granted, seventy dollars; if it is denied, forty dollars. [Code, § 2561, without change.] § 715. Costs on order. The costs on an order in a surrogate's court are the same as on an order in an action in the supreme court, and may be collected in like manner. [Code, § 2556, last part of second sentence, rewritten but without intended change in substance.] § 716. Additional allowance in settling accounts. In addition to the sums specified in sections 713 and 714, the surrogate may in his discretion allow to an executor, administrator, guardian, or testamentary trustee, on a judicial settlement of his account or on an intermediate accounting required by the surrogate, such a sum as the surrogate deems reasonable for his counsel fees and other expenses, not exceeding ten dollars for each day occupied in the trial, and necessarily occupied in preparing his account for settle ment, and otherwise preparing for the trial. [Code, § 2562, without change.] § 717. Allowance on sale of real property.-On the disposition of real property of a decedent, as prescribed in article sixteen of this code, the executor, administrator, or freeholder, disposing of the property, must be allowed by the surrogate, his expenses, out of the proceeds of the sale brought into court, and he may be allowed, out of the proceeds, a reasonable sum for his own services, not exceeding five dollars for each day actually and necessarily occupied by him in disposing of the property and such a further sum as the surrogate thinks reasonable for the neces sary services of his attorney and counsel therein. The allow ances specified in this section are in lieu of commissions. [Code, §§ 2563, 2564, consolidated without change.] § 718. Fees of appraiser.-An appraiser is entitled, in addition to his actual expenses, to a sum to be fixed by the surrogate not exceeding five dollars for each day actually and necessarily occupied by him in making the appraisal or inventory. The number of days' services and the expenses, if any, must be proved by the affidavit of the appraiser, and the sums payable therefor taxed by the surrogate and paid by the executor or administrator. [Code, § 2565, without change.] § 719. Fees of other officers and witnesses.-Each other officer, including a referee, and each witness is entitled to the same fees for his services and for travelling, as he is allowed for like services in the supreme court. [Code, § 2566, without change.] § 720. Fees of the surrogate.-A surrogate shall not charge or receive any fee, except as follows: 1. Where, in a case prescribed by law or in any other case, on the application of a party, he goes to a place other than his office or the court room where he is required to hold court, in order to take testimony, he may charge and receive to his own use ten cents for each mile for going, and the same sum for returning. 2. He must charge and receive to the use of the county for copy of a paper, ten cents for each folio, except where the board of supervisors have allowed his clerk to receive fees for his own use, and in that case his clerk may charge and receive the same fee. [Code, § 2567, without change.] § 721. When fees not to be charged.-If the inventory of personal property of a testator or intestate, filed in the office of the surrogate, does not exceed the sum of one thousand dollars, no fees for any services done or performed by the surrogate shall be charged to or received from the executor or administrator. If the petition for letters testamentary or of administration shall allege that in the belief of the petitioner the inventory will not exceed such amount, no fees shall be received until it appears from the inventory when filed that the personal property does not exceed that sum. On the appointment of a guardian, if it appears that the application is made for the purpose of enabling the minor to receive bounty, arrears of pay or prize money, or pension due, or other dues or gratuity from the federal or state government, for the services of the parents or brother of such minor in the military or naval service of the United States, no fees shall be charged or received. [Code, § 2501, all except last sentence, without change. The last sentence is included in the next section.] § 722. Annual report of fees.-The surrogate of each county, except New York, at his own expense, must make a report to the board of supervisors of the county, on the first day of each annual meeting thereof, containing a verified statement of all fees received or charged by him for services or expenses since the last report, and of all disbursements chargeable against the same, or to the county, stating particularly each item thereof. [Code, § 2501, last sentence, without change.] |