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MATTER ACCOUNTING LEWIS G. GAINES ET AL. (06/10/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


June 10, 1969

IN THE MATTER OF THE ACCOUNTING OF LEWIS G. GAINES ET AL., AS EXECUTORS OF ISIDOR JAFFE, DECEASED, RESPONDENTS-APPELLANTS. SHIRLEY KAHN ET AL., APPELLANTS-RESPONDENTS; W. DONALD NYLAND, SPECIAL GUARDIAN, RESPONDENT-APPELLANT

Concur -- Stevens, P. J., Capozzoli, McGivern, Markewich and McNally, JJ.

Decree entered July 3, 1968, from which cross appeals are taken by the respective parties, modified on the law, the facts and in the exercise of discretion in the following particulars: The executors are personally surcharged for the full amount of the special guardian's fee, the legacies to the infant wards (children of the objectants) with interest as specified in the decree, and with such amounts as are due to creditors and tax authorities by the executors on behalf of the estate. The executors could not by agreement divest themselves of their legal responsibilities, particularly to the infant legatees. We also specifically affirm the determination of the learned Surrogate with respect to the agreement dated November 28, 1958, but modify the decree to reduce the liability of the objectants to the petitioners by the sum of $2,000, payments previously made on account of attorney's fees and executors' commissions, and the additional sum of $600 representing 10% of the fee of the special guardian for work done and effort expended, made necessary solely by reason of certain acts or derelictions of the executors for which they alone are responsible, and which, properly, the objectants should not be bound to indemnify the executors. As so modified the decree appealed from is otherwise affirmed, with a single bill of costs and disbursements to the special guardian only against the objectants and the petitioners. Settle order on notice.

19690610

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