In re the Accounting of Ellis , 15 A.D.2d 629 ( 1961 )

Memorandum:

This matter was previously before us on a construction proceeding (9 A D 2d 1020, motion for leave to appeal denied 7 N Y 2d 710). In the decree of judicial settlement the Surrogate charged the appellants Arnold Shapiro and Gerald Ellis one half of the allowances made to the two special guardians and to the attorneys for the coexecutor and trustee of the Rose Ellis Shapiro estate. This was improper (Matter of Niedelman, 6 A D 2d 291). The alloAvances so made should be charged entirely against, and paid by, the estate of Joseph Ellis without any contribution by appellants. The Surrogate further refused to make any allowance to the attorneys for Arnold Shapiro and Gerald Ellis as successor cotrustees and coexecutors of the Rose Ellis Shapiro estate. This was an improvident exercise of discretion. With the entire record before us, we allow, pursuant to section 309 of the Surrogate’s Court Act, to the attorneys for the two above-named successor cotrustees and coexecutors the sum of $3,500, which similarly should be charged against and paid by the estate of Joseph Ellis. As so modified the decree is in all other respects affirmed. (Appeal from decree of Jefferson Surrogate’s Court dismissing objections to the account of the executor of decedent, fixing the costs payable to the parties and directing manner of payment.) Present — Bastow, J. P., Goldman, Halpern, McClusky and Henry, JJ.