| N.Y. App. Div. | Jun 24, 1940
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 A.D. 879" date_filed="1938-06-10" court="N.Y. App. Div." case_name="In re the Judicial Settlement of the Intermediate Account of Proceedings of Myers">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.