In re the Judicial Settlement of the Accounts of Marshall

Majority

p. 156

In the Matter of the Judicial Settlement of the Accounts of Henry Rutgers Marshall and another, Executors, etc., of Frederick P. Marshall, Deceased.

(Supreme Court, General Term, First Department,

Filed November 24, 1888.)

Headnote

Costs—Allowances to guabdian—When fixed—Effect of final decebe.

It is the practice on the judicial settlement of executor’s accounts to make a proper allowance to the guardian. The amount should he determined before the final decree is made. But after the final decree is entered the amount of the allowance cannot be changed on appeal from the decree.

p. 157

Appeal by the executors from an order of the surrogate of the county of New York denying an application to reduce the compensation of a special guardian appointed to attend the settlement of the executor’s accounts.

Clarence R. Conger, for app’lts; John H. Holliday, resp’t, in person.

The application was made to the surrogate to open the final decree on the settlement of the executors’ accounts, and to reconsider the allowance of the sum of seventy-five dollars made to the guardian to compensate him for his services in the proceedings. This allowance was made upon an affidavit of the guardian stating the services rendered by him and the time devoted to the settlement of the executors’ accounts. If it had been intended to contest his right to an allowance, or to the amount which the surrogate should deem to be adequate for the services, that should have been done when the case was being heard by the surrogate. It is the practice in these proceedings always to make an allowance to the guardian when his services have been faithfully and attentively performed. And if any disposition on the part of the executors existed to confine the allowance to a smaller amount, it was their duty to meet this subject and to bring it to the attention of the surrogate before the final decree was entered in the proceeding. This they failed to do, and allowed the final decree to be entered settling the executors’ accounts, and including this payment, and after that, without any substantial excuse for the omission to devote previous attention to this subject, the application was made to the surrogate to re-adjust the allowance at a smaller amount. And that he declined to do. In that decision it cannot be held that he was in error, although a smaller sum would probably have compensated the guardian for all the services and attention bestowed by him in the course of the proceeding. It was for him to fix and adjust the allowance upon the affidavits and papers before him. And as no excuse was offered for the omission of the executors to present proof by way of affidavit or otherwise upon this subject to the surrogate, a case was not made out, which under the common principles applicable to defaults, entitled the executors to a further hearing concerning the guardian’s compensation. The allotted time for that object ad been allowed to pass without giving the subject attention. And as no substantial excuse was presented for the omission the surrogate was justified in denying the application which was made.

The order, consequently, should be affirmed, but as the

p. 158

guardian has evidently been subjected to no further expense, it should be without costs to either party.

Van Brunt, P. J., and Bartlett, J., concur.