In re the Estate of Rees

277 A.D.2d 839

Opinion

Appeal from so much of a decree of the New York County Surrogate’s Court, entered December 31, 1948, as (1) denied a petition by appellants for revocation of letters testamentary issued to the executors of Tom Rees, deceased, (2) overruled objections by appellants to certain items in the account of the accounting executor and allowed said executor certain commissions and allowances, (3) directed payment of certain general legacies and proportionate shares in the residuary estate, and (4) failed to surcharge certain amounts against the accounting executor.

Per Curiam.

The executor forfeited his right to commissions by his misconduct and unfaithfulness to his trust (Cook v. Lowry, 95 N. Y. 103; Matter of Frame, 245 App. Div. 675; Matter of Junkersfeld, 244 App. Div. 260). While he may have believed the assignments he obtained to be valid, nevertheless, there was no justification for his conduct in treating the estate assets as his own while there were other persons beneficially interested in the estate. As to them he still owed the obligations of a fiduciary. His flagrant disregard of those obligations should not be rewarded by an allowance of commissi oris. The decree should therefore be modified by denying the executor’s claim for commissions and, as so modified, affirmed, with costs to the appellants, payable out of the estate.

Peck, P. J., Glennon, Cohn, Callahan and Shientag, JJ., concur.

Decree unanimously modified by denying the executor’s claim for commissions and, as so modified, affirmed, with costs to the appellants payable out of the estate. Settle order on notice.