Hyperlawhypertext legal database In re Union Trust Co. 151 N.Y.S. 1099

← Cases

In re Union Trust Co.

151 N.Y.S. 1099 Court N.Y. Sur. Ct. English

Contents

Majority

p. 1099
(88 Misc. Rep. 456)
In re UNION TRUST CO. OF NEW YORK.
(Surrogate’s Court, Kings County.
December, 1914.)

Headnote

Infants (§ 83[1] ) — Special Allowance to Guardian.
Where a proceeding for the judicial) settlement of the accounts of a trustee was pending before September 1, 1914, when recent revision took effect, special guardian appointed therein was entitled to the allowance prescribed by Code Civ. Proc. § 2748, relative to the compensation of special guardians. .
[Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 232-235; Dec. Dig. § 83.*]
Judicial settlement of the account of the proceedings of Union Trust Company of New York, as trustee of trust created by the will of Charles F. Hoffman, deceased.
Decreed according to opinion.
See, also, 86 Misc. Rep. 392 , 149 N. Y. Supp. 324 .
Miller, King, Dane & Trafford, of New York City, for Union Trust Co. of New York.
Charles W. Dayton, of New York City, for Rosalie Avery and Josephine L. Burdette.
J. Brownson Ker, of New York City, special guardian, for Grace H. Swink.

The special guardian is allowed $600 to be paid from the fund which is the subject of this account. Its allowance is

p. 1100
made under section 2748 of the Code of Civil Procedure, which is as follows:
“A special guardian for an infant or incompetent shall receive a reasonable compensation for his services to be fixed by the surrogate, payable from the estate or fundj or from the interest of the ward therein, or from both in such proportion as the surrogate may direct.”

The present proceeding was pending before September 1, 1914, when the recent revision of the practice took effect. In the Surrogate’s Court of New York county it is held that costs and allowances in proceedings commenced before September 1, 1914, are to be adjusted in accordance with the provisions of the new law. Matter of Cunningham, 87 Misc. Rep. 172 , 150 N. Y. Supp. 431 ; Matter of Greer, N. Y. L. J., Oct. 21, 1914.

' Neither in that court nor in the court of any surrogate of the state has there been'any intimation against the correctness of the view contained in the cases cited, supra. Doubt has been expressed by that court as to whether the direction contained in the section quoted supra should be obeyed. Matter of Seabury, 87 Misc. Rep. 241 , 150 N. Y. Supp. 420 ; Matter of Stevenson, 150 N. Y. Supp. 423 , Nov. 7, 1914; Matter of O’Day, 88 Misc. Rep. 408 , 150 N. Y. Supp. 425 .

There is a general duty to follow the decision of another court of equal jurisdiction, if such decision has been distinctly made, while no duty is imposed to adopt from any such court a decision, however definite, which proceeds from a doubt.

Decreed accordingly.

Cases cited