Majority
p. 369In the Matter of the Application of Johnsie B. Burnham, Administratrix De Bonis Non of the Estate of Charles H. Campbell, Deceased, that the Surrogate Direct Dudley Dupignac, and William Whynman and Homer Folks, as Executors, etc., of Ralph Folks, Deceased, to Refund to the Said Estate Whatever Sum the Said Dupignac and the Said Folks Received or Were Paid for Their Legal Services as Attorneys and Counsel for the Said Estate and for the Disbursements Connected Therewith as the Surrogate May Determine to Have Been and to Be in Excess of the Fair Value of Such Services and Disbursements. Johnsie B. Burnham, as Administratrix De Bonis Non, etc., of Charles H. Campbell, Deceased, Petitioner, Respondent, Appellant; Dudley Dupignac, and William Whynman and Homer Folks, as Executors, etc., of Ralph Folks, Deceased, Appellants, Respondents. First Department, June 19, 1942.
p. 370
! George Gordon Battle of counsel [Thomas Stokes with him on the brief; Battle, Levy, Fowler &Neaman, attorneys], for the respondent-appellant.
Henry A. Uterhart of counsel [Alfred M. Schaffer with him on the brief] for Dudley Dupignac, appellant-respondent.
- 'William Whynman, for William Whynman and Homer Folks, as executors, etc., of Ralph Folks, deceased, appellants-respondents.
There is no evidence whatever of duress. Assuming overreaching or fraud in the procurement of the original retainer, the evidence establishes petitioner’s repeated ratification over a period of years, when the terms of the retainer were fully understood by her, and also inexcusable laches in instituting this proceeding.
The decree appealed from should be reversed, without costs, and the petition dismissed.
Glennon, Untermyer and Dore, JJ., concur; Martin, P. J., and Townley, J., dissent and vote to affirm.
Decree reversed, without costs, and the petition dismissed.