In re the Judicial Settlement of the Account of Randall

202 A.D. 860

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1922
• Status: Published

Opinion

Decree of surrogate modified as hereinafter indicated and as modified affirmed. The court disapproves of the refusal of the surrogate to find that the sum of $500 for attorney’s services in obtaining settlement was a proper deduction to be made from the fund recovered.v (Code Civ. Proc. § 1903.)

* The court also disapproves of the refusal of the surrogate to allow as an item of funeral expense the sum of $82 paid by the administratrix for a burial lot for the interment of the intestate and also as a funeral expense the sum of $145 paid by her. for a monument for the deceased. The court also disapproves of the refusal of the surrogate to allow the expenses of serving citations amounting to $10. The court, therefore, disapproves of the third finding in the decree of the surrogate, reverses that portion of the decree and under its plenary power under section 2763 of the Code of Civil Procedure, † finds that the account should be allowed and settled as follows:

Amount received in settlement................................... $5,250 00

Deductions to be made before division:

Amount allowed to Leopold Spitz........................ $250 00

Funeral expenses, A. N. Henderson, Malone, N. Y......... 28 00

Henry J. Conley, undertaker........................... 238 00

Cemetery lot for interment of deceased in Malone, N. Y— 82 00

Monument for deceased............................... 145 00

Francis B. Cantwell, services in obtaining settlement of case. 500 00

Francis B. Cantwell, services on final accounting.......... 50 00

Expense of serving citations............................. 10 00

Amount of administratrix commissions................... 156 25

- 1,459 25

Those portions of the decree which order the account to be settled as stated in the third finding of the surrogate and which order the administratrix to reimburse the estate to the extent of $184.34 and all other portions of said decree inconsistent herewith are reversed Let an order be entered in accordance with this decision and also decreeing that the administratrix pay to J. C. Little, special guardian $50.50 the amount allowed by the surrogate upon the final account’ng and also decreeing that costs be payable to all parties filing separate briefs herein payable out of the estate and decreeing that the balance be distributed one-third to the widow and to each of the infants one-fourth of two-thirds. All concur; Van Kirk, J., not sitting.

Now Decedent Estate Law, § 133, as added by Laws of 1920, chap. 919.-— [Rep.

Now Surr. Ct. Act, § 309.— [Rep.