Opinion
October 19, 1964
In a probate proceeding, Robert Garland, coexecutor and legatee under the will of the decedent, appeals from so much of an order of the Surrogate's Court, Kings County, entered January 24, 1964, as granted $1,012.50 to Ernest R. Latham, Esq. for counsel fees, said amount to be a lien upon appellant's share of the decedent's estate. Order, insofar as appealed from, reversed, without costs, and matter remitted to the Surrogate's Court for the taking of proof as to the legal services performed by respondent on behalf of the appellant and as to the reasonable value of such services. The respondent's fee should not have been fixed without adequate proof as to the nature and extent of the services performed by him (cf. Matter of Pelgram, 239 App. Div. 18, 21). His affidavit is vague in this regard. Moreover, issues of fact are raised which are determinable only upon a hearing (cf. Matter of Post, 155 Misc. 389, 391; Matter of Britton, 187 Misc. 70, 82). Ughetta, Acting P.J., Brennan, Hill, Rabin and Hopkins, JJ., concur.