
    In the Matter of the Assignment of Cassius B. Elmore et al. to David Crossman for the Benefit of Creditors.
    [Special Term.]
    (Decided March 8th, 1880.)
    The expense of the accounting of an assignee for the benefit of creditors is a proper charge against the estate ; and where a retiring assignee has done his duty, and has"paid over to his successor the whole estate, the fees of the referee upon his accounting may he paid by the new assignee out of the funds in his hands.
    Application to confirm the report of a referee upon an accounting by a retiring assignee under a general assignment for the benefit of creditors.
    The facts are stated in the opinion.
   Van Hoesen, J.

The usual course is to charge the as signed estate with the expenses of the accounting. This is so, because to render an account is a necessary part of the duty of a trustee, and the law does not require that the expenses of executing the trust shall be borne by him. Our law requires an accounting before an assignee can be discharged, and the accounting is for the benefit of those having an interest in the assigned estate. This is so, though incidentally the sureties.of an assignee are benefited by an accounting, inasmuch as it is indispensable to their release from liability on their bond. The accounting of a retiring assignee is to be considered as part of the expenses of appointing a new assignee; and the rule is, that “the expenses of appointing new trustees, when necessary and proper, must unquestionably be borne out of the corpus of the trust estate.” (Hill on Trustees, marg. p. 189.)

In the first instance the new assignee who has the funds in Ms hands will pay the fees of the referee who audits the accounts of the retiring assignee, and if it should appear on the hearing of the motion to confirm the report that the retiring assignee ought to be compelled to pay the expenses of the accounting, the proper order may be made to charge him. Where the retiring assignee retains any of the funds of the estate the rule might be different.

The report is required by the court, and the referee cannot be required to tile it till his fees have been paid. When the retiring assignee has done his duty, and has paid over to his successor the whole assigned estate, there is no sense in compelling him to pay the referee and thereby make himself a creditor of the assigned estate.

The motion is granted.

Application granted.  