In re the Judicial Settlement of the Final Account of Proceedings of Kelly

Majority

p. 1083

In the Matter of the Judicial Settlement of the Final Account of Proceedings of Ann Kelly, as Administratrix, etc., of Michael Dempsy, Deceased. Ann Kelly, as Administratrix, etc., of Michael Dempsy, Deceased, and David R. Haber, Attorney for Administratrix, Appellants; John Aimone, as Special

p. 1084

Guardian for Barbara Dempsey, Harold Dempsey, Catherine Dempsey, Molly Dempsey and Edward Powell, Infants, etc., Florence Powell, Donald Powell, Margaret Powell, Essie McAvoy, Arthur Powell, Edward Powell, Miriam McEvoy and Dorothy Powell, Respondents.

-Proceeding for the judicial settlement of the final account of proceedings of an administratrix. Decree of the Surrogate’s Court of Westchester County modified by striking the amount ■ “ $750 ” from the first decretal paragraph and inserting in place thereof the amount “ $1180.34; ” and by striking from said paragraph the amount “ $500 ” and inserting in place thereof the amount “ $69.66.” As thus modified, the decree, in so far as appealed from, is unanimously affirmed, with costs to the attorney appellant and to the special guardian, payable out of the estate, and the matter remitted to the Surrogate’s Court for the entry of a decree in conformity with the modification. In making the surcharge the surrogate should have limited the amount to the share thereof represented by the only objecting interests which amounts to $69.66. The surcharge and the sum to be paid by the attorney are reduced to that amount. The court is of the opinion that the amount paid by the administratrix to her attorney was fair and reasonable. If the surrogate deemed it excessive the surcharge should not have exceeded $69.66, the amount represented by the only objecting interests. Present — Lazansky, P. J., Cars-well, Johnston, Adel and Taylor, JJ.