Walbridge v. Walbridge — 139 A.D. 223

Majority

p. 223

John H. Walbridge and Robert R. Walbridge, as Executors, etc., of Olin G. Walbridge, Deceased, Appellants, v. George O. Walbridge, Individually and as Executor, etc., of Olin G. Walbridge, Deceased, and Others, Defendants. Maurice V. Theall, Guardian ad Litem of Ernest A. Walbridge, Respondent.

Second Department,

June 17, 1910.

Headnote

Guardian and ward—guardian ad litem — allowance.

Where in an action to determine whether under a will interest should be charged on certain advancements and at what valuation certain property should b e transferred, the guardian ad liiern of an infant defendant conferred with his ward, examined the documents in the case, served a general answer, attended the call of the calendar, conferred with attorneys for some of the defendants, prepared for trial and examined the only witness called, and it appears that the complaint was dismissed without decision on the merits, that the trial was very brief and that the infant’s share of the estate amounts to but §50,000, the * allowance of the guardian should not exceed §500.

p. 224

■ Appeal by the plaintiffs, John H. Walbridge and another, as executors, etc., from so much of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the . county of Kings on the 14th day of February, 1910, after a trial at the Kings County Special Term, as' directs them to pay out of the share of the defendant Ernest A. Walbridge an allowance of $1,500 to Maurice "V". Theall, as guardian ad litem.

William N. Dykman, for the appellants.

James G. Church [Maurice V. Theall with him on the brief], for the respondent.

The sole question arises upon the objection made by the plaintiffs to the allowance made to the .guardian "ad litera of an infant' defendant. . The questions involved in the action were whether:, under a clause of the will, interest 'should be charged on certain advancements, and whether, under another clause in the-will, a demand made by one of the defendants-for the -transfer of certain realty and personalty left by the téstator, required the executors to make such transfer at their previous appraisal of the property. The complaint was dismissed without decision upon 'the merits, which were remitted fof disposal to the Surrogate’s Court. Of course our determination rests upon the record presented'on this .appeal; and if it be meager, the fault is in him who would uphold the allowance.. The affidavit of the guardian shows that. he conferred With his ward that he made an investigation into the inventory and other documents on file in the, Surrogate’s Court i’ti Order' to qualify himself for intelligent action in, the case; that he served a general answer, attended upon the call of the calendar from time to' time, conferred with attorneys' for some of the defendants and prepared for the trial of the issues, and that, lie conducted or attempted to conduct an examination óf the. only witness called during the trial.

The trial itself Was exceedingly brief, for the record thereof lies within 3 pages of the appeal book. Although the estate itself was-very large it seems that the share of the infant is-in the neighborhood of but $50,000.

p. 225

We think that in the exercise of our discretion, and upon this record, we are compelled to heed the objection, and that the allowance should be reduced to $500. This we do without any reflection upon the guardian ad litem, whom we recognize as a lawyer well qualified to discharge whatever duties such or any litigation might .require of him.

The judgment, so far as appealed from, is modified by reducing the allowance of the guardian ad litem to $500, and as so modified is affirmed, without costs to either party:

Woodward, Jenks, Burr, Rich and Carr, JJ., concurred.

Judgment, in so far as appealed from, modified by reducing the allowance of the guardian ad litem to $500, and as so modified affirmed, without costs.