In re the Estate of Koerner , 170 Misc. 473 ( 1939 )

Wingate, S.

The court is thoroughly sympathetic with the desires of the special guardian for unknown distributees to protect the interests of those whom he represents to the maximum extent possible. It is, however, unable to aid him in either of the modes sought.

It is thoroughly established that a court is ordinarily powerless to grant a request for the issuance of an open commission unless the applicant therefor shall undertake the payment of the reasonable costs and expenses thereof. (Grant v. Booth & Co., 119 App. Div. 918; Matter of Interocean Mercantile Cory., 207 id. 164, 166; Chaskin v. Mackay, 130 id. 50, 52; Dayton v. Farmer, 201 id. 239, 241; Cole v. Manufacturers Trust Co., 253 id. 749.)

Obviously the special guardian has no funds available for such a purpose, wherefore no order for an open commission may be granted.

The alternative suggestion of bringing the witness to this country from Germany at the expense of the estate is equally unavailable in the face of the objection which has been interposed to the adoption of such a course. The court possesses no authority to direct the payment of any such disbursement from the funds of the estate. (Matter of Manzi [Tietjen], 155 Misc. 670, 675; Matter of Mackenzie, Id. 822, 824.)

The only course open to the special guardian is, therefore, to submit cross-interrogatories to the best of his ability with the recollection that to succeed, his opponents must demonstrate affirmatively not only the identity of the persons who are entitled to participate in the distribution but also the quantum of their rightful participation which will involve not only affirmative proof of any others who are entitled to share, but the adequate indication that no others than those proved to be distributees are properly to be included in this category.

Enter order on notice in conformity herewith.