
    Estate of Margaret Willett, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      Filed June 14, 1888.)
    
    1. Costs—Contest in surrogate’s court—Test of good faith.
    In relation to the charging of an unsuccessful contestant with the costs of a contest in the surrogate’s court a test of good faith is: Would any reasonable man have contested under the circumstances.
    2. Same—Bill of costs—How made up and taxed—Code • Crv. Pro § 2562.
    The entire charge for days consumed before the surrogate and before the referee should be included in one sum under the provisions in the bill of costs stated as being under Code Civ Pro., § 2562 Manner of making up bill of costs and amount allowed explained
    3. Trustees—Commissions—Apportionment of.
    The standard by which to measure the apportionment of commissions to trustees (when there are several) is not the amount either or both receive,, but the value of the actual service rendered by either to the trust.
    
      Wm. C. Reddy, for trustees; Edmund D. Hennessy, for objectors.
   Ransom, S.

The parties to this proceeding are Edward M. Willett and Richard A. Brown, trustees; William M. Willett, Sr., cestui que trust, and Edward Willett and Cornelius C. Willett, remaindermen under the trust created in the will of above deceased. William M. Willett, the cestui que trust, is the administrator of Wm. M. Willett, Jr., the deceased former trustee, and is also guardian of two children of his deceased' daughter. These children are entitled to one-third of the residue of the trust. The proceeding herein was begun by the petition of Edward Willett for a compulsory accounting in October, 1886. An order that the trustees account was made in October, 1886, and their account was thereafter filed and objections filed thereto by Edward and Cornelius 0. Willett, and an order of reference made January 2, 1887. On the coming in of the referee’s report, which substantially disallowed the objections, exceptions were filed thereto and the proceeding was sent back to the referee to take further proof, which was done. The report of the referee was confirmed and all the exceptions thereto overruled. This report substantially sustained the trustees. A proposed decree is now submitted by the trustees and bills of costs presented therewith of the trustees, of Cornelius 0. Willett and Edward Willett, objectors. The trustees seek to impose the entire costs of the proceeeding upon the objectors. Certain amendments to the decree are proposed by the objectors, which include some minor changes, evidently caused by clerical errors, and further the changing of the provision in regard to trustees’ commissions.

I will first take up the question of costs.

Upon a consideration of the referee’s report it was not my intention to consider his suggestion as to who should bear the costs of the proceeding, but to leave that question open until the settlement of the decree.

I have no doubt but that this proceeding was instituted in good faith. From 1870 to 1876 there had been no accounting of the proceedings of the trustees had, and in 1876 an accounting was had in the supreme court, to which these objectors were not parties. From 1870 to 1886 six trustees were associated with Edward M. Willett, who was a trustee from the commencement of the trust, a great part of the time sole trustee. The affairs of the trust, as shown by the facts, brought out on the two references, were, to say the least, in a somewhat muddled condition, and the fact that the objectors were in the main unsuccessful, would not alone induce me to charge them with the expense of this contest. A fair test seems to be, Would any reasonable man have-contested under the circumstances? I think he would-hence the application to charge the costs on the objectors should be and is denied.

Neither can the application to .charge them on the trustees be granted.

The trustees submit a bill of cost and disbursements aggregating $1,920.94.

I will take up the items separately.

The seventy dollars for contest under section 2561 Code Civil Procedure, is allowed. The next item is $130 for fifteen days occupied on the trial before the surrogate, less two. There is a wide discrepancy between the statement of the trustees and that of the objectors as to the number of days spent before the surrogate; the objectors say five and the trustees fifteen. There can be no actual difference. There is a strange mistake somewhere which should be explained; otherwise I shall allow nothing m this regard. I will say here that the form of trustees’ bill of costs is incorrect. The entire charge for days consumed before the surrogate and before the referee should be included in one sum under the provisions in the bill of costs, stated as being under section 2562.

The next item is a charge of $200 for twenty days occupied on the trial, etc., less adjournments. This charge will be governed by the certificate of the referee, who certifies that there were ten days on the first reference, on which something was done, and four days on the second. I must take this as conclusive, although differing somewhat from the statements of the respective parties. The trustees are allowed ten days (first reference), plus four days (second reference), $140.

The next item claimed is $150 for fifteen days consumed in preparing the account. The affidavit to support this charge is very meagre and not in conformity with the rule. I have been obliged, therefore, to examine the accounts. They are not voluminous, and do not seem to have been difficult of preparation. I think ten days ample for their preparation, and allow, therefore, one hundred ($100) dollars.

The next item claimed is $490 for forty-nine days occupied in otherwise preparing for trial. The affidavit to support this charge in no way conforms to the rule, and is of no aid to me in reaching a correct decision. In consideration of the other costs asked for and allowed as above, and being mindful of the character of the accounts and the questions involved therein, I think this charge excessive. It is impossible that a reference which occupied but fourteen days could justify the consumption of forty-nine days in preparation therefor, outside the number of days occupied in preparing the accounts. I must have proof to sustain all allowances, and as none is furnished justifying this claim, it must be disallowed.

I now come to the disbursements of the trustees. The - first and second items amount to $650 for referee’s fees on both references. ¡Neither this amount nor anything like it can be allowed. There being no stipulation entered into on the reference, or consent of all the parties filed now, that his fees should be taxed at that amount, and, on the contrary, objection thereto being made, he must be limited to the statutory fees. His certificate shows that fourteen days were actually occupied on the two references; for these days he is allowed eighty-four dollars. He also states that on both references he consumed sixteen days in the preparation of his report. This seems to be a very liberal allowance of time for such service, but their being no objection or counter-statement, I will allow him sixteen days therefor, ninety-six dollars, making: Days on which testimony was taken, fourteen, eighty-four dollars; days preparing report, etc., sixteen, ninety-six dollars, $180.

The next item is $219.80, stenographer’s fees. There being no objection to this charge, no infants and all parties represented, it is allowed. All the other disbursements of the trustees are allowed.

I now come to the costs of Cornelius C. Willett, who asks for- Contest, seventy dollars; fourteen days on trial or hearing, less two, $120, $190. This is fully explained by affidavit and certificates of referee, and is allowed.

The next bill of costs is that of Edward Willett. He asks for- Contest, seventy dollars; twenty-one days on trial or hearing, less two, $190. This cannot be granted.. He may be allowed the same as his co-objector, namely: Contest, seventy dollars; fourteen days on trial or hearing, less two, $120, $190. The disbursements of this party, amounting to $19.99, seem to have been necessary, and are allowed.

I next come to the question of trustees’ commissions. Trustee Edward M. Willett was the executor under the will and received as his commissions, on his final accounting as such executor in April, 1870, $1,252.36. There is no doubt but that he is entitled to double commissions on a certain amount of the trust fund which he, as executor, turned over to himself as trustee (Matter of Starr, 2 Dem., 141; Laytin v. Davidson, 95 N. Y., 263; Estate of Mason, 98 id. 527). but not on the full amount.

The next consideration is on what amounts the commissions to the respective trustees will be allowed, and how the same will be apportioned between them. The standard by which to measure the apportionment of commissions to these trustees is not the amount either or both received, but the value of the actual service rendered by either to the trust. Hill v. Nelson, 1 Dem., 357; Matter of Harris, 4 Dem., 463.)

The amount of commissions must be computed as follows: One-half commissions will be allowed the trustees on the "whole sum of $51,555, for x-eceiving; these commissions to be apportioned between them in proportion to the services which they have thus far rendered in the administration of the trust, which, in my judgment, would entitle Trustee Willett to one-half commissions on $10,700 for receiving, and one-half commissions for paying out the same, and. would entitle Trustee Brown to one-half commission for-receiving $á0,555.

The only duties performed by Trustee Willett towards the whole fund of $51,555 related entirely to that portion on which he has been allowed one-half commissions for receiving and paying out, viz : $10,700.

The amendments to the decree proposed by Mr. Hennessy should be heeded on the presentment of the new decree-Let one be presented in accordance with the foregoing memorandum.  