In re Clemens

New York Surrogate's Court

In re Clemens

194 Misc. 585, 87 N.Y.S.2d 487, 1949 N.Y. Misc. LEXIS 1948

DecidedMarch 30, 1949

StatusPublished

This text of 194 Misc. 585 (In re Clemens) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Clemens, 194 Misc. 585, 87 N.Y.S.2d 487, 1949 N.Y. Misc. LEXIS 1948 (N.Y. Super. Ct. 1949).

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Opinion

Taylor, S.

It appears from the petition that William J. Gregg was appointed the guárdian of the above-named minor, such guardianship being necessary because of payments to be made to the minor from the United States Veterans’ Administration.

The guardian is an attorney and he rendered services in connection with an obvious conference with the minor, or some one in his behalf, in connection with an application for an order authorizing the expenditure of funds for the purchase of clothing for the minor, preparation of an affidavit or a petition to this court and the preparation of an order allowing and approving such expenditure. The position by the Veterans’ Administration is that as the guardian is himself an attorney there should be no allowance of compensation beyond the usual commissions because there has been no extraordinary services rendered.

An attorney is not to be penalized in acting as guardian or other fiduciary; as guardian he is required to do all those things which a lay guardian would be required to do and to receive therefor no further compensation than the statute permits, based upon a commissions formula, but when he performs services as an attorney he steps out from his roll as guardian and becomes to all intents and purposes a separate and distinct person. We have here Gregg, the guardian, and Gregg, the attorney. The services performed by Gregg, the attorney, are legal services, quite apart from the services he is required to perform as [586]*586guardian and services which the lay guardian is not capable of performing. (See Matter of O’Connor, 265 App. Div. 519; Matter of Urbanski, 233 App. Div. 338; Matter of Berri, 130 Misc. 527; Matter of Moriarity, 27 Misc. 161; Surrogate’s Ct. Act, § 285.)

An allowance of $15 to the attorney for the legal services mentioned will be allowed.

Order may be settled by consent or upon eight days’ notice.

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Taylor, S.

It appears from the petition that William J. Gregg was appointed the guárdian of the above-named minor, such guardianship being necessary because of payments to be made to the minor from the United States Veterans’ Administration.

The guardian is an attorney and he rendered services in connection with an obvious conference with the minor, or some one in his behalf, in connection with an application for an order authorizing the expenditure of funds for the purchase of clothing for the minor, preparation of an affidavit or a petition to this court and the preparation of an order allowing and approving such expenditure. The position by the Veterans’ Administration is that as the guardian is himself an attorney there should be no allowance of compensation beyond the usual commissions because there has been no extraordinary services rendered.

An attorney is not to be penalized in acting as guardian or other fiduciary; as guardian he is required to do all those things which a lay guardian would be required to do and to receive therefor no further compensation than the statute permits, based upon a commissions formula, but when he performs services as an attorney he steps out from his roll as guardian and becomes to all intents and purposes a separate and distinct person. We have here Gregg, the guardian, and Gregg, the attorney. The services performed by Gregg, the attorney, are legal services, quite apart from the services he is required to perform as [586]*586guardian and services which the lay guardian is not capable of performing. (See Matter of O’Connor, 265 App. Div. 519; Matter of Urbanski, 233 App. Div. 338; Matter of Berri, 130 Misc. 527; Matter of Moriarity, 27 Misc. 161; Surrogate’s Ct. Act, § 285.)

An allowance of $15 to the attorney for the legal services mentioned will be allowed.

Order may be settled by consent or upon eight days’ notice.

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Bluebook (online)

194 Misc. 585, 87 N.Y.S.2d 487, 1949 N.Y. Misc. LEXIS 1948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-clemens-nysurct-1949.

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