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In the matter of the judicial settlement of the account of Herman Baruth and Isaac Lublin, executors of Theresa Ketcham. Objections overruled.
Hirsh & Rasquin (Hugo Hirsh, of counsel), for executors.
KETCHAM, S. Objection is made that the executors' account should not be credited with the sum paid in compromise of an action against them on a claim said to have accrued against their decedent.
A determination that the executors were not liable in that action would not sustain the objection. Even if the cause of action which the executors have settled were now shown to have had no foundation, they should be allowed credit for the payment, if it was made in good faith and from a reasonable fear that the litigation might go against them, or that their success therein might prove more costly than a partial surrender.
Without an attempt to answer the close questions which surround this claim, it should be held that the executors did wisely and faithfully in purchasing peace for the estate. True, the alleged creditor, as a part of the compromise, gave to the executors his bond to indemnify them against liability if any should occur by reason of objections such as are now filed; but the quality of the objection remains the same as if no bond had been given. It still presents only the question whether the claim was fraudulently or negligently compounded.
The objection is overruled.
(Surrogate's Court, Kings County. March, 1909.) EXECUTORS AND ADMINISTRATORS (8 87*)--ACTIONS—COMPBOMISE.
Where an administratrix brought an action against a corporation for causing her decedent's death, and a compromise has been arranged, the attorney for the defendant may represent her in an application for an ap proval of the compromise by the court; but there should be presented to the court something beside the views of the attorney as to the expediency of the settlement.
[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 387; Dec. Dig. $ 87.*]
In the matter of the administration of the estate of John Stanley, deceased. Application by administratrix for leave to compromise right of action for damages causing decedent's wrongful death. Continued for further evidence.
Percy J. King, for petitioner.
KETCHAM, S. The administratrix asks leave to compromise the right of action for damages against a company, in whose employ the
decedent was, for the "wrongful act," neglect, or "default" by which the decedent's death was caused. Having first arranged with her for the proposed compromise, the company has provided the petitioner with the attorney representing her in this proceeding. The expense for his services will be borne by the said company. The attorney makes affidavit that the amount of the settlement had been agreed upon before he was called in to perfect the legal details requisite to making the payment, and that he is of the opinion that it is to the interest of the estate and of the petitioner that she should be permitted to accept the compromise.
This attorney is only the agent of those who retain him and will pay him. He has assumed no duty toward his nominal client as to the terms of the compromise, and would be superhuman if he could sincerely serve her in that respect. There is no legal reason why he may not represent her in this application, though he has no interest in her welfare; but his views as to the expediency of the proposed arrangement are as worthless to the court as they are to her. There should be submitted the affidavit of the person or persons who have made the investigation upon which the applicant obviously depends in her submission of the facts. There is no reason to doubt the fairness of the compromise. Indeed, upon the statement of the petitioner, it is generous to her; but the court must take care of this widow, who has nobody to care for her, and the statement must be confirmed.
(Surrogate's Court, Kings County. March, 1909.) EXECUTORS AND ADMINISTRATORS (§ 32*)-REVOCATION OF LETTERS-PETITION BY
In proceedings to revoke letters testamentary on the joint petition of an infant legatee and her father, wbo is also a legatee for a nominal amount, the petition will not be dismissed because one petitioner by reason of infancy is incapable of maintaining the proceedings.
[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 205; Dec. Dig. $ 32.*] In the matter of the application of George Denyse and Ella I. Denyse for revocation of letters testamentary granted to Mary Heist, executrix. Motion to dismiss petition denied.
Henry M. Dater, for petitioners.
KETCHAM, S. Proceedings to revoke letters testamentary have been commenced by joint petition of an infant legatee and her father, who is also a legatee, but for a nominal amount. The infant has no guardian, general or special, and makes her petition in her own name and behalf.
•For other cases see same topic & & NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
The motion to dismiss the petition, on the ground that one of the petitioners is by reason of infancy incapable of maintaining it, must be denied. The questions presented by the motion were laid by Surrogate Coffin in 1884 (Matter of. Watson, 2 Dem. 642), and his views there expressed have remained without dissent. Let order be settled providing for the filing and service of answer and setting the case for trial.
(Surrogate's Court, Kings County. March, 1909.) LIMITATION OF ACTIONS (8 72*) – INFANCY – CLAIM AGAINST ESTATE-SUSPEN
An infant exhibited to the administrator a claim against the estate, which was rejected. No written consent was filed for the determination of the claim by the surrogate, and no action commenced for its enforce ment within six months after its rejection. Held, that the short statute of limitations was suspended during the infancy of the claimant.
[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. A 390_398; Dec. Dig. $ 72.*]
In the matter of the judicial settlement of William Cashman, administrator. Claim against estate allowed.
Edmund Bittiner, for administrator.
Thomas H. Troy, special guardian, for Edward Jordan and George J. Jordan, infants.
Jose E. Pidgeon, special guardian, for Mollie Goldstein, infant.
KETCHAM, S. A person still an infant has exhibited to the administrator a claim against the estate of the decedent. The administrator has disputed and rejected the claim. No written consent has been filed with the surrogate for the determination of the claim, and the infant claimant has not commenced an action for the recovery thereof against the administrator within six months after the dispute or rejection. It is insisted on one side that the claim is barred by section 1822 of the Code, and, on the other, that the special limitation contained in that section is subject to the provision of the general statute of limitations (Code, § 396) that the period of infancy is not a part of the time limited for commencing the action.
The latter view must prevail, notwithstanding the mischiefs which may follow, and they are serious. The case seems to be controlled by McKnight v. City of New York, 186 N. Y. 35, 78 N. E. 576, in which, as to a short statute of limitations, bearing the same relation to the general statute as does section 1822 of the Code, it is held that the special limitation is left, like the general limitation prescribed in chapter 4 of the Code of Civil Procedure, subject to suspension during the existence of any of the disabilities specified in section 396, one of which is in fancy.
There remain further grounds upon which the court is asked to make a decree of distribution, in disregard of this claim; but they all present matters of fact, which can only be disposed of upon a trial.
(Surrogate's Court, Kings County. March, 1909.) LIFE ESTATES ($ 20*)-RIGHTS OF LIFE TENANT/INCOME-EXPENSES.
Where trustees have withheld from the market for the benefit of the remainderman unimproved and unproductive property in the exercise of a sound discretion, and the appreciation in value of the property has justified their management, the expenses should be charged on the fund, and not on the income of the life tenant.
[Ed. Note.-For other cases, see Life Estates, Cent. Dig. $ 41; Dec. Dig. § 20.*]
In the matter of the judicial settlement of Samuel H. Coombs and others, executors of Robert W. Gleason. Decree rendered.
Robert H. Wilson, for executors.
KETCHAM, S. The trustees are right in imposing upon the fund, and not the income, the carrying charges of the unimproved and unproductive property, which they have withheld from market for the eventual benefit of the remainder. Matter of Martens, 16 Misc. Rep. 245, 39 N. Y. Supp. 189. See, also, opinion of Mr. Surrogate Belford in Matter of Knapp (filed April 13, 1908) 117 N. Y. Supp. — These trustees have acted in the exercise of a sound discretion, and the lands above mentioned have all appreciated in value sufficiently to justify their management.
As to the Atlantic avenue lots, there is no evidence as to their improvement in value, and, while in five years the disbursements have been $210.11, the rent for the last year has been $50. Upon the evidence, no reason is perceived for laying the burdens of any part of these outlays upon the life tenant.
With the exception last noted, the objections are overruled.
Decreed accordingly. •For other cases see same topic & I NUMBER IN Dec. & Am. Digi. 1907 to date, & Rop'r Indexas
ABRAMOWITZ v. GOOD et al. (Supreme PER CURIAM. Judgment affirmed, with Court, Appellate Division, First Department. costs. Order filed. April 16, 1909.). Action by Louis Abramowitz HOUGHTON, J., dissents, voting to modify against Lee S. Good and another. No opinion. judgment by restricting execution to attached Application denied, with $10 costs.
Order property. signed.
AMERICAN MFG. CO., Appellant, v. CITT ACARDO V. NEW YORK CONTRACTING OF NEW YORK et al., Respondents. (Supreme CO. (Supreme Court, Appellate Division, First Court, Appellate Division, Second Department. Department. April 16, 1909.) Action by Se- April 23, 1909.) Action by the American Manebastiano Acardo against the New York Contract facturing Company against the city of New ing Company. No opinion. Motion denied on York and another. No opinion. Judgment al terms stated in order. Order filed.
firmed, with costs.
ASH, Respondent, V. MEEKS, Appellant ADLIN V. EXCELSIOR BRICK CO. OF (Supreme Court, Appellate Division, Second De HAVERSTRAW et al. (Supreme Court, Appartment. April 23, 1909.) Action by William pellate Division, Second Department. April 30, H. Ash against Emma Meeks. 1909.) Action by Minnie Adlin, as administra
PER CURIAM. Motion granted, with $10 trix, etc., of Elimelech Adlin, against the Ex- costs, unless the defendant forth with perfect the celsior Brick Company of Haverstraw, N. Y., appeal, put the case at the foot of the presen: and others. No opinion. Motion for reargu- calendar, and be ready for argument when ment denied, with costs. See, also, 129 App. reached,' in which case the motion is denied, Div. 713, 113 N. Y. Supp. 1017.
BACOT v. FESSENDEN. (Supreme Court. HEIGHTS R. CO., Respondent. (Supreme Appellate Division, First Department. Apri Court, Appellate Division, Second Department. 30, 1909.) Action' by Julius I. Bacot against May 7, 1909.) Action by Elizabeth Albert Levi A. Fessenden. No opinion. Motion de against the Brooklyn Heights Railroad Com- nied, with $10 costs. Order filed. See, also, pany. No opinion. Order of the Municipal | 115 N. Y. Supp. 698. Court affirmed, with costs.
BARKER V. BARKER. (Supreme Court ALBRECHTSEN, Respondent, v. LORETZ, 16, 1909.) Action' by Eva M. Barker against
Appellate Division, First Department. April Appellant. (Supreme Court, Appellate Division, Charles B. Barker. No opinion. Motion de Second Department. April 23, 1909.) Action nied. by Henry P. Albrechtsen against Susie H. Loretz. No opinion. Judgment of the Municipal Court affirmed, with costs.
BARNES et al. V. MIDLAND R TERMI. NAL CO. (Supreme Court, Appellate Division.
Second Department. April 23, 1909.) Action ALFANI, Respondent, v. WEIDIG et al., Ap- by Sarah H. Barnes and others against the pellants. (Supreme Court, Appellate Division, Midland Railroad Terminal Company. No opisSecond Department. April 23, 1909.) Action ion. Motion granted, and order of reference to by Henry F. Alfani against William J. Weidig David F. Manning, Esq. See, also, 126 App and others.
Div. 435, 110 N. Y. Supp. 545. PER CURIAM. Judgment and order of the Municipal Court reversed, and new trial ordered, costs to abide the event, on the ground that Court, Appellate Division, First Department.
BARR v. SOFRANSKI et al. (Supreme the plaintiff's letter of April 30th shows that no April 30, 1909.) Action by William J. Barr. purchaser ready to buy was obtained, and that the verdict was against the weight of evidence. No opinion. Motion denied, with $10 costs.
as trustee, against Eva Sofranski and another.
Order filed. See, also, 115 N. Y. Supp. 533. ALTMAN, Respondent, v. MERONI, Appellant. (Supreme Court, Appellate Division, First BAUMAN, Respondent, v. TANNENBAUM, Department. April 8, 1909.) Action by Benja-Appellant. (Supreme Court, Appellate Divi min Altman against Adele Meroni. I. M. Har- sion, First Department. April 30, 1909.) AC