Migeot v. McGwire

CONREY, P. J.

Appeal from an order settling the first and final account of Charles H. McGwire as special administrator.

Appellants appeared as persons interested in the estate as heirs at law and residuary legatees, and also as executors of the last will and testament of decedent, and filed their exceptions in writing to the account. They personally have taken this appeal.

On November 27, 1918, special letters of administration were issued to McGwire. On November 29th appellants

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filed their petition for probate of the will of decedent. The will was contested by Maud M. Kafitz, surviving wife of the decedent. In an action for divorce, wherein William Kafitz was plaintiff and Maud M. Kafitz defendant, an interlocutory decree had been entered less than one year before the death of William Kafitz, and, therefore, a final decree of divorce had not been entered. After trial the will was admitted to probate in May, 1919, and appellants were appointed executors thereof. On December 2, 1918, appellants filed a petition for removal of the special administrator which petition, after hearing, was, on the twenty-seventh day of December, 1918, denied. On April 25, 1919, petitioners filed- a second petition for removal of the special administrator. This was set down for hearing on July 16th -and thereafter continued until September 11, 1919. Prior to September 11th, and while under arrest and charged with the commission of a crime, McGwire came to his death by suicide. His estate was represented at the hearing on said account and on the exceptions thereto, and the order of settlement of the account was made December 12, 1919. The value of the property accounted for by the special administrator was about $88,000.

The exceptions to the account were based upon the stated ground that the special administrator failed to account for all of the property received by him, and in particular that he allowed Mrs. Kafitz to take- and appropriate to her own use certain items of said property. It was further objected that the claim of the special administrator for an allowance of $1,000 for his services and for an allowance of $1,000 as fees for his attorney were exorbitant, and that no allowances for those purposes should be made. The court, in its order, decided that the special administrator has turned over to the executors all of the property of the estate except the sum of $2,500; that it was necessary for the special administrator to seek frequent advice of his attorney in connection with his administration; that the sum of $750 each is a reasonable fee for the special administrator and his attorney. Thereupon the court provided that out of the moneys remaining in the hands of the special administrator, or his successors, “$750 shall be allowed as attorney’s fees to Joseph Scott and said special administrator shall retain as his commission allowed by law for his services $750,” and