SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 24, 1968
IN THE MATTER OF THE ESTATE OF HENRY J. GRUPE, DECEASED. WILLIAM GRUPE ET AL., AS TRUSTEES, ET AL., APPELLANTS; LAURA M. GRUPE ET AL., RESPONDENTS
Christ, Acting P. J., Brennan, Rabin, Hopkins and Munder, JJ., concur.
In consolidated proceedings to fix counsel fees, the appeals are (1) by trustees other than the successor-trustee, Herbert Schrank, and by others from so much of an order of the Surrogate's Court, Queens County, dated November 28, 1967, as directed payment of $16,447.65 to Klotz and Gould, Esqs., out of the corpus of the trust estate for legal fees, inclusive of accountants' services, and disbursements and (2) by said appellants and the successor-trustee from so much of a decree of said court dated December 27, 1967 as directed payment of $14,000 to the Special Guardian out of the corpus of the trust estate. Decree dated December 27, 1967 affirmed insofar as appealed from, with costs to the Special Guardian, payable out of the trust estate. No opinion. Order dated November 28, 1967 affirmed insofar as appealed from, with costs to respondents Klotz and Gould, payable out of the trust estate. In their capacities as beneficiaries under the will, the testator's children were different legal persons than they were as trustees. In our opinion, the proceedings were beneficial to the trust estate as a whole and the counsel fees should be paid out of the estate (3A Warren's Heaton on Surrogates' Courts, § 295, par. 4; Matter of Hirsch, 154 Misc. 736; Matter of Smith, 167 Misc. 95; cf. Matter of Kaufman, 169 Misc. 714, affd. 256 App. Div. 1070).
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