In re Marshall's Estate

2 N.Y.S. 868 | N.Y. Sup. Ct. | 1888

Daniels, J.

The application was made to the surrogate to open the final-decree on the settlement of the executors’ accounts, and to reconsider the allowance of the sum of $75 made to the guardian to compensate him for his. services in the proceedings. This allowance was made upon an affidavit of the guardian stating the services rendered by him, and the time devoted to the settlement of the executors’ accounts. If it had been intended to contest his right to an allowance, or to the amount which the surrogate should deem to be adequate for the services, that should have been done when the case was being heard by the surrogate. It is the practice in these proceedings always-to make an allowance to the guardian when his services have been faithfully and attentively performed; and; if any disposition on the part of the executors existed to confine the allowance to a smaller amount, it was their duty to meet this subject, and to bring it to the attention of the surrogate before the ■final decree was entered in the proceeding. This they failed to do, and allowed the final decree to be entered, settling the executors’ accounts, and including this payment, and after that, without any substantial excuse for the omission to devote previous attention to this subject, the application was made to the surrogate to readjust the allowance at a smaller amount, and that he declined to do. In that decision it cannot be held that he was in error, although a smaller sum would probably have compensated the guardian for all the services and attention bestowed by him in the course of the proceeding. It was for him to fix and adjust the allowance upon the affidavits and -papers before him; and, as no excuse was offered for the omission of the executors to present proof by way of affidavit or otherwise upon this subject to :the surrogate, a case was not made out which, under the common principles ■applicable to defaults, entitled the executors to a further hearing concerning the guardian’s compensation. The allotted time for that object had been allowed to pass without giving the subject attention; and, as no substantial •excuse was presented for the omission, the surrogate was justified in denying ■the application which was made. The order consequently should be affirmed, ■but, as the guardian has evidently been subjected to no further expense, it ¡should be without costs to either party.

Van Brunt, Pi J., and Bartlett, J., concur.