In re the Accounting of Killick — 26 N.Y. St. Rep. 763

Majority

p. 763

In the Matter of the Accounting of Henry Killick, as Committee, etc., of William Blossom, a lunatic.

(Supreme Court, General Term, Fifth Department,

Filed October 19, 1889.)

Headnote

1. Lunatics — Committee oe — Commissions.

Where the committee’s trust terminates by the death of the lunatic, and he renders a final account and turns over the entire estate which is undisbursed, he is entitled to full commissions on the entire estate.

2. Same — Counsel fees.

Where the estate is large, and the committee also had the custody of the lunatic, the general term will not interfere with an allowance to the committee of a reasonable counsel fee paid by the committee.

3. Same.

The committee on his final accounting should turn over to his successor his own notes which he found among the lunatic’s papers, although the same are outlawed.

Appeal from an order of the Monroe county court passing the final accounts of Killick, as committee, etc.

E. Van Voorhes, for app’lt; Ed. Webster, for resp’t.

-The committee received into his hands of the personal property of the lunatic cash items, bonds and mortgages and notes.

Two months after his appointment the lunatic died, and Maria A. Blossom was appointed the administratrix of his estate. The committee paid out as expenses, in the due administration of his trust, the sum of $282 only.

The aggregate of the personal estate was $9,584.75.

The court below allowed commissions on the aggregate amount of the personal estate for receiving and paying out the same, computed on the same basis as those allowed executors and administrators on final settlement of their accounts. The appellant insists that commissions for receiving and paying out should be limited to the sum of $282, the amount actually disbursed.

p. 764

The trust terminated with the death of the lunatic, and he has rendered a final account, and has turned over to the personal representative of the deceased the entire estate undisbursed.

He is entitled to the same compensation by way of commission as if his ward had lived and been restored to the enjoyment of his mental faculties, and his estate returned to him under the order of the court. In such a case the committee would be entitled, on rendering a final account, to full commissions.

In this case the trustee has in all respects faithfully executed his trust, and has earned the compensation awarded him by the statute. Code of Civil Pro., § 2338; Ward v. Ford, 4 Redf., 34; Matter of DePeyster, 4 Sand. Ch., 511 . The rule adopted in cases where trusteees are removed, or retire on their own application, or die, has no application, for the manifest reason that the trust remains unadministered at the time of the accounting. The committee was allowed the item of $75 as a fee to be paid his counsel. The court had the power within its discretion to make the allowance as a proper and necessary disbursement.

A faithful trustee is always allowed his expenses out of pocket, which includes a reasonable fee paid his counsel. Downing v. Marshall, 37 N. Y., 380 ; Wetmore v. Parker, 52 id., 450 .

While it appears that the committee had no difficult question to consider, up to the time of the death of his ward, and we see but little reason for consulting counsel, we -would be disinclined, if we had the power, to interfere with the allowance, as the estate was quite large, consisting of both real and personal property, and the custody of the lunatic was also given to the committee.

In such cases it cannot be said, without inquiry into the facts and circumstances, whether the committee acted judiciously for the estate, or for his own protection, in consulting counsel. The court below did so, and came to the conclusion that the trustee should be allowed the item of seventy-five dollars to be paid counsel. This court cannot review the judgment of another court except for legal error. Thurber v. Townsend, 22 N. Y., 517 ; Reilley v. President, etc., 102 id., 383; 2 N. Y. State Rep., 419; Stebbins v. Cowles, 30 Hun, 523 ; Wavel v. Wiles, 24 N. Y., 635 ; Osborn v. Nelson, 59 Barb., 375 .

As this item was largely in the discretion of the court below, we cannot strike it out of the credits allowed the trustee. We think it was the duty of the trustee to turn over his own notes, which he found among the papers of the lunatic, to the administrator, although they appear to have been outlawed at the time of his appointment.

It appears that they were present and given in evidence on the hearing, and the counsel for the committee offered to dispose of them in the way ordered by the court

As the order does not make any disposition of the notes, it should be modified so as to direct the committee to pay them over to his successor in interest, and, as modified, the order should be affirmed, with ten dollars costs. ,

Dwight and Macomber, JJ., concur.