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selves, as executors, to themselves, as trustees, without changing the form of the securities, viz., reducing them to cash. The court held in the above-quoted language that they could, and that is all that is held.

Matter of Notman, 103 App. Div. 521, 93 N. Y. Supp. 82, arose upon an intermediate accounting of a committee. The principal point in controversy and under consideration was the matter of allowing commissions on securities not reduced to cash. It appeared, however, that one-half commissions were ordered allowed by the Appellate Division for receiving the corpus of the estate, although the opinion deals almost entirely with the matter and question above referred to. It will be observed that, as stated, the question arose upon an accounting, and I therefore do not consider the case as authority for the proposition that a committee, without an accounting, may help himself to commissions.

In the case of Whitehead v. Draper, 132 App. Div. 799, 117 N. Y. Supp. 539, the question arose as to what was a fair and just settlement between the estate of deceased executors and the successor in the trust, and it was held that the deceased executors' estate was entitled to no commissions for turning over the estate to the successors, but that the estate of the original trustee should be allowed one-half commissions as a fair payment for what the original trustee had done in his lifetime.

In Olcott v. Baldwin, 190 N. Y. 99, 82 N. E. 748, while one-half commissions were allowed a surviving trustee, in an action brought by the representative of a deceased cotrustee, for receiving the trust fund, I do not consider that case any authority for trustees helping themselves to one-half commissions for receiving in advance.

Matter of Silliman, 67 Misc. Rep. 27, 124 N. Y. Supp. 622, was also a case of an apportionment of fees between a deceased executor's estate and his successor in the trust.

There is a line of cases, some of which are cited by the committee, but which are clearly to be differentiated from the case at bar, in which it is held that where a settlement is made annually by the trustee with the cestui que trust, payable out of the income, with the assent of the parties interested, that trustees may in such a case retain their commissions on the annual income, and that, where an accounting is rendered yearly in compliance with any statute or rule or order of the court, the accounting party is entitled to full commissions on each year's receipts and disbursements. Hancox v. Meeker, 95 N. Y. 539; Matter of Mason, 98 N. Y. 535. In the latter case the court

said:

"Our decision goes only so far as to hold that, where the income is annually received and annually paid over, the trustees may retain full commissions, 5 per cent. on the first thousand, etc., as if the income received were the entire fund to be received and disposed of by them.”

In Matter of Haskin, 49 Misc. Rep. 179, 98 N. Y. Supp. 927, the court said:

"The rule seems to be well settled that, where a trustee pays over the entire income, year after year, without making any claim for commissions, he is deemed to have waived his right thereto, and he cannot, upon his final accounting, be awarded commissions upon the past income payable, either out of the trust fund on the present or future income."

The reason for this is obvious, as a failure to take commissions out of the annual income would result in compelling the remainderman to pay commissions on money which he had never received. As was said in Matter of Slocum, 60 App. Div. 445, 69 N. Y. Supp. 1041:

"They cannot pay the income in full and deduct commissions on such income from the principal, where the income goes to one set of beneficiaries and the principal to another."

To the same effect are Matter of Haight, 51 App. Div. 317, 64 N. Y. Supp. 1029; Matter of Fisk, 45 Misc, Rep. 298, 92 N. Y. Supp. 394.

I do not think that the doctrine of these cases should be extended. As a matter of necessity, and because it would be an unwarranted expense, as well as a useless formality, to have an accounting every time an income or trust fund is periodically turned over to a cestui que trust, and to enable the fiduciary to get his pay for handling the annual income, and get it from the one who receives the income, the cases cited, and others, have held that it is permissible for the fiduciary to retain his commissions; but neither any of the cases which we have considered, nor any cited by the committee, nor any that I am able to find, holds that a committee may, without accounting and without an order of the court, himself deduct commissions (assumed to be at the rate of one-half) from the corpus of the estate.

[2] In certain cases, some of which we have considered before, where a committee has died, or resigned, or been removed, the courts have split up commissions, and I suspect that various committees have followed the practice, and decided themselves that they are entitled to take out one-half of the commissions which they hoped to be eventually entitled to receive, immediately upon receiving the corpus of the estate, or at some time during the administration of it; and that is what the committee seeks to do in this case. I believe that such a course is illegal and unwarranted, and must deny his request.

There are cases, and very likely this is one, in which it might be a hardship upon the committee to defer awarding him commissions, other than on annual receipts and disbursements, until the termination of his trust. With reference to such cases it is my belief and decision that the only way relief can be afforded is by an intermediate accounting. Section 2342 of the Code seems to provide for two separate and distinct procedures in connection with committees' accountings. The first one is in connection with the requirement of section 2341, and provides for the examination by the county judge, or under his direction, of the annual account to be filed pursuant to that section in January of each year. It is that sort of a proceeding which is now · before me as a magistrate. Such a proceeding as this is "ex parte, out of court, and not designed to be binding upon the incompetent person or those interested in his estate.” Matter of Arnold, 76 App. Div. 126, 78 N. Y. Supp. 772; Matter of Cowen, 130 App. Div. 365, 114 N. Y. Supp. 797.

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The second proceeding, that specified in the latter part of the section (2342), provides for "an intermediate judicial accounting of all his proceedings affecting the property of the incompetent person to the date of the filing thereof”; and it is provided that said account shall be then judicially adjusted, determined, and filed, and shall amount to a final judicial settlement up to that time. The first proceeding is more or less informal, is out of court, deals with the transactions of one year only, and does not seem to be binding upon any one, being apparently designed to provide for an informal official scrutiny of the transactions of committees, who have been said to be “bailiffs of the court,” and I do not think in such a proceeding as this one that it is one in which commissions can or should be adjusted; but the second proceedings provided for are of a more substantial nature, and are in court, and all interested parties are cited, and they involve a review of the whole stewardship of the committee.

If the committee herein deems himself entitled as a matter of equity to an allowance for receiving the corpus of the estate, or for an additional allowance under section 2338, he may bring up the matter in such a proceeding. His original vouchers have been filed with his annual accounts, and all his annual accounts are in court, and I see no objection, if the committee sees fit to bring on an accounting under the latter part of section 2342, to doing so upon all his vouchers and accounts as filed, with a supplemental account up to date, upon all of which the matter may be heard.

An order will therefore be made adjusting the annual account, but without permission to the committee to deduct fees for receiving the corpus of the estate.

Ordered accordingly.

In re BARNARD'S WILL.

(Surrogate's Court, Essex County. September 18, 1912.) 1. WILLS (166*)-CONTEST—UNDUE INFLUENCE-EVIDENCE.

In a will contest, evidence held to show that the will was not the result of coercion and undue influence asserted upon the decedent by the beneficiary.

[Ed. Note.-For other cases, see Wills, Cent. Dig. $8 421-437; Dec. Dig.

$ 166.*] 2. WILLS ($ 405*)—PROBATE-CONTEST-ASSESSMENT OF Costs.

Costs in an application for the admission of a will to probate will not be taxed personally against contestants on a finding against them, but will be made payable out of the estate, where the circumstances apparently justified the contest.

(Ed. Note.-For other cases, see Wills, Cent. Dig. $S 879–884; Dec.

Dig. $ 405.*] 3. WILLS ($ 164*)—CONTEST--UNDUE INFLUENCE—LATITUDE OF EXAMINATION.

In a will contest, in which undue influence on the part of the benefi

ciary is charged, wide latitude in the examination of witnesses is permis*For other cases see same topic & S NUMBER 10 Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

sible, where it is shown that the will contested was executed soon after another of a different character.

[Ed. Note. For other cases, see Wills, Cent. Dig. 88 403-414; Dec.
Dig. 8 164.*]
In the matter of proving the last will and testament of Mary P.
Barnard. Will admitted to probate.

W. R. Kellogg and A. W. Boynton, for proponent.
Frost, Daring & Warner (J. S. Frost, of counsel), for contestants.

PYRKE, S. [1] The only objection to the probate insisted upon is that the will was the result of coercion and undue influence exerted upon the decedent by the beneficiary, Ada G. Douglass. The will was executed on March 14, 1911, and the decedent died on January 15, 1912. At the time of the making of the will Miss Barnard was in her seventy-ninth year, and was the owner of a few thousand dollars. She was a maiden lady, and had not maintained a home of her own for many years, if ever. She had lived for some 16 years prior to her death in the home of Ada G. Douglass, of Westport. Her near relatives consisted of a brother and nephews and nieces. All of these relatives lived in distant states, excepting a niece, who resided at Westport, and a nephew, residing at Plattsburgh, N. Y. She was warmly attached to Westport as a place of residence, and was exceedingly reluctant to live elsewhere. In the home of Miss Douglass she was well and kindly treated, and during a number of illnesses which she suffered while there Miss Douglass gave to her the attentions which ordinarily would be expected only of a daughter. She had certain eccentricities of thought and action which militated against her desirability as an inmate of one's home. For the care and attention she received at the Douglass home she had paid up until the time of the execution of this will $3 per week. Miss Douglass had been dissatisfied for some years with the arrangement under which Miss Barnard was with her, and the matter of her being provided for elsewhere had been the subject of correspondence with relatives of the decedent. She had, however, suffered her to remain, apparently through motives of sympathy. Miss Barnard was naturally a woman of strong mentality and inclined to be self-willed, and these qualities of mind were modified but slightly by advancing years.

In January, 1911, Miss Barnard was attacked by an illness, which continued for about six weeks, and confined her to her bed. During such illness, and on the 7th of February, 1911, she made a hurried will, leaving her property in the main to a niece. The subject matter of this will became known to Miss Douglass, and evidently to others living near by. Shortly after this will was made Miss Douglass notified the decedent and her business agent and adviser, Mr. George B. Richards, a business man of Westport, that she was unwilling to continue to have Miss Barnard at her home under the existing arrangement. Across the road from the Douglass home lived a Mrs. Eddy, a widow, whose husband in his lifetime had been the business ad*For other cases see same topic & $ NUMBER In Dec. & Am. Digs. 1907 to date, & Rep'r Indexos

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viser of Miss Barnard, and who was herself both a friend and neighbor of Miss Barnard and Miss Douglass. As soon as Miss Barnard had sufficiently recovered to leave the house, she called upon Mrs. Eddy, and told her of what Miss Douglass had said as to being unwilling to have her continue longer in her home, and added that she did not know what she was going to do, to which Mrs. Eddy replied that she thought Miss Douglass would keep her if she (Miss Barnard) was willing to do what was right. During the conversation alternative places of living were discussed, the situation of the relatives of Miss Barnard as a possible solution of the problem was considered, and as a conclusion of the inquiry it seemed to both Miss Barnard and Mrs. Eddy that the best thing for the former to do was to continue to live with Miss Douglass.

Thereupon Mrs. Eddy summoned Mr. Richards to the conference, and the details of a proposed arrangement with Miss Douglass were gone over, and Mr. Richards was informed that Miss Barnard or Mrs. Eddy had talked with Miss Douglass, and that she was willing to take Miss Barnard and look after her for the remainder of her life, providing Miss Barnard would pay her $300 a year and in addition leave to her any property that she (Miss Barnard) might have at the time of her death, and the property was to be placed in Richards' hands to handle as the agent of Miss Barnard. This statement was made to Mr. Richards either by Miss Barnard or by Mrs. Eddy in Miss Barnard's presence and with her acquiescence. Miss Barnard also stated to Mr. Richards that she wanted him to act as executor and "attend to the matter." Mr. Richards told Miss Barnard that he was not capable of preparing the necessary papers, and that he thought he better consult a lawyer. Within a few days he went to a neighboring village and consulted an attorney, who prepared a form of an agreement, a form of a will, and a form of an assignment of certain property from Miss Barnard to Mr. Richards in trust. Mr. Richards then called upon Miss Barnard and showed her the papers which had been prepared, and they were read over by her.

Upon reading them over, she said that they were all right, except that she wished to leave certain personal effects to her nieces; that the will as it read gave everything to Miss Douglass, and that she wished it could be changed. Mr. Richards said that he would return the papers to the attorney and have the will redrawn. Miss Barnard replied not to do that, for him to change the draft of will so that Miss Douglass would get the bonds and mortgages and cash, and that she would leave it to him to see that her wishes in respect to her personal effects were carried out. Mr. Richards then changed the draft of will to the form in which it now appears, and Miss Barnard then told him to take the will and keep it safely until another witness could be present upon its execution. A few days later, upon an occasion when Mr. Richards was at the Douglass house with friends upon a social call, the will, agreement, and assignment were executed, and the arrangement went into effect and was carried out by both parties until the death of Miss Barnard. Some time after the making of her

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