In re the Accounting of Newton

Appellate Division of the Supreme Court of New York

In re the Accounting of Newton

259 A.D. 1046, 1940 N.Y. App. Div. LEXIS 7912

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 24, 1940

StatusPublished

This text of 259 A.D. 1046 (In re the Accounting of Newton) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Accounting of Newton, 259 A.D. 1046, 1940 N.Y. App. Div. LEXIS 7912 (N.Y. Ct. App. 1940).

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Opinion

Order fixing the fee of the special guardian of the incompetent, etc., modified by striking out the last three decretal paragraphs thereof, and, as thus modified, the order is unanimously affirmed, without costs. In a proper case the court has power to surcharge a fiduciary for the value of services rendered by a special guardian in recouping from the fiduciary funds which belong to the estate. In a prior decision this court affirmed the finding that the ownership of the real property was in the incompetent, who held legal title (Matter of Newton, 254 App. Div. 879), but the undisputed evidence in that proceeding shows that at the very least the father had an arguable claim of ownership of the real property. Since the fiduciary would be justified in asserting the claim, even though it was not sustained, the surety likewise was entitled to urge the same claim. There was no impropriety or misconduct shown on the part of the deceased committee, such as would have required his removal; and under aE the facts and circumstances of the case his estate should not be surcharged with the amount of the special guardian’s fee. Present — Lazansky, P. J., CarsweE, Johnston, Adel and Taylor, JJ.

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Order fixing the fee of the special guardian of the incompetent, etc., modified by striking out the last three decretal paragraphs thereof, and, as thus modified, the order is unanimously affirmed, without costs. In a proper case the court has power to surcharge a fiduciary for the value of services rendered by a special guardian in recouping from the fiduciary funds which belong to the estate. In a prior decision this court affirmed the finding that the ownership of the real property was in the incompetent, who held legal title (Matter of Newton, 254 App. Div. 879), but the undisputed evidence in that proceeding shows that at the very least the father had an arguable claim of ownership of the real property. Since the fiduciary would be justified in asserting the claim, even though it was not sustained, the surety likewise was entitled to urge the same claim. There was no impropriety or misconduct shown on the part of the deceased committee, such as would have required his removal; and under aE the facts and circumstances of the case his estate should not be surcharged with the amount of the special guardian’s fee. Present — Lazansky, P. J., CarsweE, Johnston, Adel and Taylor, JJ.

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Bluebook (online)

259 A.D. 1046, 1940 N.Y. App. Div. LEXIS 7912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-accounting-of-newton-nyappdiv-1940.

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