In re the Estate of Williams — 17 N.Y. St. Rep. 839

Majority

p. 839

In the Matter of the Estate of Daniel T. Williams, Deceased.

(Surrogate’s Court, New York County,

Filed July 20, 1888.)

Headnote

1. Practice in surrogate’s court—Duties of referee appointed by surrogate—When objections stricken out for want of prosecution.

Referees appointed by the surrogate should not permit the proceedings . to be d laved except for strictly legal cause. If the objector does not at ■once proceed to sustain his objections, the reference should be closed, and a prompt report to the court made of the exact facts, whereupon the ■objections may be stricken out for want of prosecution. If the objections are idle and frivolous, the expense of the proceeding occasioned by them will be charged upon the contestants personally.

2. Same—Costs—When executors and administrators chargeable with.

In proceedings before a referee, if the executor or administrator does not diligently prosecute his duty, and manifest 'a disposition to promptly and economically complete the trust committed to his charge, and act in accordance therewith, he will be required to pay the costs of the proceeding.

The account of the executor was filed subject "to any objections by a special guardian to be appointed on the first day of March last. A special guardian was appointed on that day who filed objections to the form of the .account in one particular. His objections were sustained by the referee. The error complained of could not have ex

p. 840

isted if the account had been prepared with proper care.. The appointment of a referee was demanded by the failure? of the attorney for the executor to give any attention to the? requests of the special guardian that he explain the account,, in those respects wherein it was found by the referee erroneous. Several attendances before the referee were occasioned by the neglect and refusal of the executor or his, attorney to heed the notice of a hearing before him. It appears that finally a summons (subpoena?) was obtained from the referee, and served on the executor personally, and even then he did not attend until a day subsequent to that designated by the referee. The real necessities of a proper examination of this executor’s account could have been disposed of in one hearing before the referee. No doubt if the executor had done his duty he would have entirely obviated any reference at all by causing an explanation of his account to be made to the special guardian, whose duty it was to carefully examine it, and to object if he found it wrong.

This is one of a large number of similar proceedings managed in substantially the same way that this has been managed; more than four months have elapsed since this account, was filed, and the special guardian appointed, and two> weeks would have been ample to enable the executor to-finish his business and obtain final decree. The special guardian has employed much and valuable time. A referee was required, and he has been compelled to attend for the purpose of hearing and determining any question that might be raised by the objections of the special guardian, and all this has been caused by the neglect of the executor’s attorney, for which the executor is, of course, responsible. It is impossible^ for me to personally hear and determine all questions arising upon the settlement of the accounts of executors and administrators. Hence, under the statute enacted for that purpose referees are appointed, and for the-particular proceeding they are vested with all the powers of this court, and should act accordingly. (Est. Chauncey L. Stephens, 28 W. D., 132.) They should not permit the proceeding to be delayed except for strictly legal cause. If the objector does not at once proceed to sustain his objections, the reference should be closed and a prompt report to the court made of the exact facts, whereupon the objections may be stricken out for the want of prosecution. If the objections are idle and frivolous, the expense of the proceeding occasioned by them will be charged upon the contestant personally. If. on the other hand, the executor or administrator, as in this proceeding, does not diligently prosecute his duty, and manifest a disposition to promptly and economically complete the trust committed to his. charge, and act in accordance therewith, he will be, as in.

p. 841

this proceeding he shall be, required to pay the costs of the proceeding.

Delays' in proceedings before referees appointed by me are improper on every ground and shall not be tolerated. I shall regard such delays if acquiesced in by the referee, as conclusive evidence of his unfitness for his office.

The costs claimed by the attorney of the executor except disbursements are disallowed. The special guardian is. allowed one hundred dollars. The referee is allowed thirty dollars, that being the amount fixed by statute for the days spent by him. And the entire- cost of this proceeding as above taxed, is charged against the executor personally, for the reasons already given.