Ingraham, P. J.:
This action was commenced in the summer of 1900 by one of the executqrs of the last will and testament of Conrad Stein, deceased, to obtain a construction of the will and to determine what real property was devised to the defendants, Alexander Stein and Conrad Stein, two sons of the testator, by the will. In addition to these two sons, the testator left him surviving four children who were infants. These two sons claimed that under the will they were entitled to several pieces of real property, which the plaintiff, as one of the executors of the will, disputed. The substantial contest, therefore, was between these two sons, on the one side, and the four infants, on the other.
On August 24, 1900, the complaint was served upon the firm of Myers, Goldsmith & Bronner, who admitted service of the complaint as attorneys for the defendants. Josephine Stein, the widow of the testator and the mother of the four infants, two of whom were over fourteen years, and two of them under fourteen years of age, presented a petition to the Supreme Court, executed by herself as the general guardian, and by the two infants who were over fourteen years of age, asking that Emanuel J. Myers, of the firm of Myers, Goldsmith & Bronner, be appointed as guardian ad litem for the infants. With that petition Mr. Myers presented an affidavit stating that he was an attorney and counselor at law, residing in the city of Hew York, that he had no interest adverse to those of the four infants, who desired to have him appointed as guardian ad litem, and that he was not connected in business with any attorney or counsel whose interests were adverse [16]*16to those of said infants. On that petition and affidavit on the 6th of September, 1900, the court appointed Mr. Myers as guardian ad litem of said infants. Mr. Myers, as guardian ad litem, interposed an answer for the infants, alleging that they and each of them were strangers to all and singular the things set forth in the complaint in this action, saving and excepting they were children of Conrad Stein, deceased, who died, leaving a last will and testament, and that they were severally infants under the age of twenty-one years, and claimed such interest in the premises as they were severally entitled to, and the said defendants by their guardian ad litem submitted their several rights and interests in the matters in question in this action to the protection of the court. This answer was signed by Emanuel J. Myers, as guardian ad litem of the infants. The defendants Alexander Stein and Conrad Stein served an answer to the complaint, claiming they were entitled to certain real estate as devisees of the testator, and that answer was subscribed by Goldsmith & Bronner, as attorneys for the defendants, two of the partners of Emanuel J. Myers. So far as appears from the record, the rights of these infants, as against their two brothers, were not insisted upon at the trial. Emanuel J. Myers, although guardian ad litem for the infants, seemed to have appeared upon the trial on behalf of all of the defendants and to have tried the case for them. In his answering affidavits he states that it was understood that Judge Gross should appear for and represent Josephine Stein as executrix and individually and Alexander Stein as executor; that Goldsmith & Bronner should appear for and interpose an answer in behalf of Alexander Stein’s and Conrad Stein’s individual interests, setting up their construction of the devise and bequest in the will; that A. C. Cropsey, who was associated with Judge Gross, should appear for and interpose an answer for Josephine Stein, individually and as testamentary guardian for the infant children of the testator, and that Emanuel J. Myers should appear as guardian ad litem for the infant children of the testator. He then stated it was understood and believed that the interests of these parties were not adverse, inimical or hostile, and tlxat the evidence which would be interposed in behalf of the [17]*17defendants would be the same, and that the oral evidence to be submitted was showing the nature, character and extent of the brewery plant, as it was considered that it was the express wish of the testator, as stated in the will, that his sons should carry on the business. He further stated that Judge Gross desired him to prepare and conduct the trial of the cause, and in particular this question of the identity of the property constituting the “Brewery Business,” in view of his special knowledge of the “ Brewery Plant,” and that all of the questions raised by the complaint were to be fairly presented to the court with the view that the will should be fairly, honestly and impartially construed in the light of all circumstances showing the nature and character of the estate and throwing any light on the testator’s intention in the “devise of the brewing business.” The cause was tried at the Special Term of the Supreme Court, presided over by Mr. Justice Bischoff, who rendered a decision sustaining the position taken by Judge Gross and Emanuel J. Myers as to the validity of the trusts contained in the will, that Mrs. Josephine Stein was not required to elect but entitled to her right of dower as well as to the testamentary provisions, and further deciding that certain real estate was part of the brewery business, and against the contention of Alexander Stein and Conrad Stein, which had been argued by Mr. Myers, although opposed to the interest of his wards, as to the four vacant lots and the foreman’s house claimed by them as part of the “brewery plant.”
It is quite clear upon this record that Mr. Myers was not a competerit person to be appointed guardian ad litem, within the provisions of rule 49 of the General Buies of Practice. His firm had appeared for Alexander Stein and Conrad Stein, whose interests were distinctly adverse to those of the infants, and his affidavit, upon which he was appointed guardian ad litem, was, to say the least, misleading. The will of the testator was indefinite as to the real estate which was included in the devise to these two sons, and these two sons’ claim to certain real property of the testator as included in the devise to . them was adverse to those of the other children of the testator, as they would have an interest in all of the real estate which [18]*18the testator owned, which was not included in the bequest to these two sons. I agree, however, with my brother Olabke that this did not make the appointment of Mr. Myers as guardian ad litem void and the judgment thus entered would bind the infants as well as the adult heirs Of the testator. (See Parish v. Parish, 77 App. Div. 267; 175 N. Y. 181.)
Mr. Myers then made two applications to the Supreme Court or an order fixing his compensation, under rule 50 of the General Eules of Practice, but neither of the applications resulted in an order in compliance with such rule, and, therefore, it would appear that Mr. Myers was not entitled to receive any compensation as guardian ad litem, and, if the facts submitted had been before the court on these applications, it is clear that no award would have been made. It is also clear that Mr. Myers rendered no services to the infants as against the claims of their brothers to these pieces of real property. What he did was to appear as counsel for the adult defendants. So Mr. Myers was entitled to no payment out of the estate of the infants for his services as guardian ad litem.
Free access — add to your briefcase to read the full text and ask questions with AI
Ingraham, P. J.:
This action was commenced in the summer of 1900 by one of the executqrs of the last will and testament of Conrad Stein, deceased, to obtain a construction of the will and to determine what real property was devised to the defendants, Alexander Stein and Conrad Stein, two sons of the testator, by the will. In addition to these two sons, the testator left him surviving four children who were infants. These two sons claimed that under the will they were entitled to several pieces of real property, which the plaintiff, as one of the executors of the will, disputed. The substantial contest, therefore, was between these two sons, on the one side, and the four infants, on the other.
On August 24, 1900, the complaint was served upon the firm of Myers, Goldsmith & Bronner, who admitted service of the complaint as attorneys for the defendants. Josephine Stein, the widow of the testator and the mother of the four infants, two of whom were over fourteen years, and two of them under fourteen years of age, presented a petition to the Supreme Court, executed by herself as the general guardian, and by the two infants who were over fourteen years of age, asking that Emanuel J. Myers, of the firm of Myers, Goldsmith & Bronner, be appointed as guardian ad litem for the infants. With that petition Mr. Myers presented an affidavit stating that he was an attorney and counselor at law, residing in the city of Hew York, that he had no interest adverse to those of the four infants, who desired to have him appointed as guardian ad litem, and that he was not connected in business with any attorney or counsel whose interests were adverse [16]*16to those of said infants. On that petition and affidavit on the 6th of September, 1900, the court appointed Mr. Myers as guardian ad litem of said infants. Mr. Myers, as guardian ad litem, interposed an answer for the infants, alleging that they and each of them were strangers to all and singular the things set forth in the complaint in this action, saving and excepting they were children of Conrad Stein, deceased, who died, leaving a last will and testament, and that they were severally infants under the age of twenty-one years, and claimed such interest in the premises as they were severally entitled to, and the said defendants by their guardian ad litem submitted their several rights and interests in the matters in question in this action to the protection of the court. This answer was signed by Emanuel J. Myers, as guardian ad litem of the infants. The defendants Alexander Stein and Conrad Stein served an answer to the complaint, claiming they were entitled to certain real estate as devisees of the testator, and that answer was subscribed by Goldsmith & Bronner, as attorneys for the defendants, two of the partners of Emanuel J. Myers. So far as appears from the record, the rights of these infants, as against their two brothers, were not insisted upon at the trial. Emanuel J. Myers, although guardian ad litem for the infants, seemed to have appeared upon the trial on behalf of all of the defendants and to have tried the case for them. In his answering affidavits he states that it was understood that Judge Gross should appear for and represent Josephine Stein as executrix and individually and Alexander Stein as executor; that Goldsmith & Bronner should appear for and interpose an answer in behalf of Alexander Stein’s and Conrad Stein’s individual interests, setting up their construction of the devise and bequest in the will; that A. C. Cropsey, who was associated with Judge Gross, should appear for and interpose an answer for Josephine Stein, individually and as testamentary guardian for the infant children of the testator, and that Emanuel J. Myers should appear as guardian ad litem for the infant children of the testator. He then stated it was understood and believed that the interests of these parties were not adverse, inimical or hostile, and tlxat the evidence which would be interposed in behalf of the [17]*17defendants would be the same, and that the oral evidence to be submitted was showing the nature, character and extent of the brewery plant, as it was considered that it was the express wish of the testator, as stated in the will, that his sons should carry on the business. He further stated that Judge Gross desired him to prepare and conduct the trial of the cause, and in particular this question of the identity of the property constituting the “Brewery Business,” in view of his special knowledge of the “ Brewery Plant,” and that all of the questions raised by the complaint were to be fairly presented to the court with the view that the will should be fairly, honestly and impartially construed in the light of all circumstances showing the nature and character of the estate and throwing any light on the testator’s intention in the “devise of the brewing business.” The cause was tried at the Special Term of the Supreme Court, presided over by Mr. Justice Bischoff, who rendered a decision sustaining the position taken by Judge Gross and Emanuel J. Myers as to the validity of the trusts contained in the will, that Mrs. Josephine Stein was not required to elect but entitled to her right of dower as well as to the testamentary provisions, and further deciding that certain real estate was part of the brewery business, and against the contention of Alexander Stein and Conrad Stein, which had been argued by Mr. Myers, although opposed to the interest of his wards, as to the four vacant lots and the foreman’s house claimed by them as part of the “brewery plant.”
It is quite clear upon this record that Mr. Myers was not a competerit person to be appointed guardian ad litem, within the provisions of rule 49 of the General Buies of Practice. His firm had appeared for Alexander Stein and Conrad Stein, whose interests were distinctly adverse to those of the infants, and his affidavit, upon which he was appointed guardian ad litem, was, to say the least, misleading. The will of the testator was indefinite as to the real estate which was included in the devise to these two sons, and these two sons’ claim to certain real property of the testator as included in the devise to . them was adverse to those of the other children of the testator, as they would have an interest in all of the real estate which [18]*18the testator owned, which was not included in the bequest to these two sons. I agree, however, with my brother Olabke that this did not make the appointment of Mr. Myers as guardian ad litem void and the judgment thus entered would bind the infants as well as the adult heirs Of the testator. (See Parish v. Parish, 77 App. Div. 267; 175 N. Y. 181.)
Mr. Myers then made two applications to the Supreme Court or an order fixing his compensation, under rule 50 of the General Eules of Practice, but neither of the applications resulted in an order in compliance with such rule, and, therefore, it would appear that Mr. Myers was not entitled to receive any compensation as guardian ad litem, and, if the facts submitted had been before the court on these applications, it is clear that no award would have been made. It is also clear that Mr. Myers rendered no services to the infants as against the claims of their brothers to these pieces of real property. What he did was to appear as counsel for the adult defendants. So Mr. Myers was entitled to no payment out of the estate of the infants for his services as guardian ad litem.
Having failed to obtain an order which would justify such a payment, he persuaded the executors of the testator, without any order of the court, to pay him the sum of $5,363.90. That money seems to have been paid out of the general assets of the estate as at that time no property had been set apart for the infants. Subsequently, however, the executors presented to the' surrogate an accounting of their proceeding, in which these infants were parties, represented by guardian ad litem. In that accounting there was a credit claim for this payment of $5,363.90, to Mr. Myers, as guardian ad litem. I cannot find that the decree of the surrogate is a part of these proceedings, but it is stated that the decree contained a provision that the said sum of $5,363.90, paid to Emanuel J. Myers as guardian ad litem of the infant children, should be paid out of “the several distributive shares of the said Josephine Stein, the younger, Paula Stein, Ella Stein and Carl Stein,.in equal proportions, share and share alike, when the trust period expires at the majority of the youngest child, Carl Stein, or his death before majority.” We must assume that this decree of the surrogate is res adjudicata as between these parties, and that [19]*19as between the infants and the executors the infants are chargeable on the final distribution of the estate with the proportionate amount of this sum of money 2 illegally and improperly paid by the executors out of the estate. But Mr. Myers was not a party to that proceeding, nor was his right to retain that sum adjudicated as between himself and his wards, the infants. Undoubtedly the executors have a right to charge that payment to the wards upon the final distribution of the estate, but there is nothing in this decree, as I view it, that, as between Mr. Myers and the wards, in an adjudication which prevents the court from ordering Mr. Myers to repay to his former wards the money wrongfully paid to him and charged to them on the final distribution of the estate. He stands before this court as an attorney and counselor of this court, and he was appointed by this court as guardian ad litem on an affidavit containing statements which were misleading. He acted as guardian ad litem through the trial of the action which determined the right of his wards to certain real property, without acting solely for the wards against their brothers who claimed an interest in the real property adverse to that of the wards, and for that he has received from the infants a sum of money to which he clearly was not entitled. Under such circumstances, it seems to me that the authority of this court in its control over its attorneys and counselors at law, when the infants arrive at age and before the final distribution of the estate, is sufficient to require the attorney to repay the sum of money which he has received without legal authority. The notice of motion is that Mr. Myers be required to repay to the executors the amount which he has received from them as compensation for the service rendered as guardian. To grant the motion in this form wóuld be, in effect, to reverse or modify the surrogate’s decree, which, as has been said, is valid and conclusive. as between the executors and the petitioners. It is not conclusive, however, as between Mr. Myers and his former wards. The notice of motion also asks for “ such other and further relief as may seem to the court just and proper in the premises,” and under this clause we are in a position to make an order adjusting the rights of the parties all of whom are before the court, which has also before it all [20]*20the facts in the case. Mr. Myers is not only an officer of the court by virtue of his office as attorney and counselor at law, but in his relation to the infants he was especially appointed as the representative and officer of the court to protect the interests of its wards. He is, therefore, subject to the summary jurisdiction of the court. He has been guilty of procuring, under circumstances which we cannot approve, a large sum of money to which he is not entitled and which has been or must be paid by his wards, who until now have had no opportunity to contest with him the propriety of the payment to him. Under these circumstances it is well within the power of the court to require him to make restitution by repaying to his former wards the sums which he received from the executors as compensation for his services as guardian ad litem,, with interest. To this extent the motion will be granted, the orders appealed from being reversed, with ten dollars costs and disbursements.
Laughlin and Scott, JJ., concurred; Olaeke and Dowling, JJ., dissented.