Opinion
March 30, 1949.
William J. Gregg, guardian of Douglas J. Clemens, an infant, appearing in his own behalf.
Frank Klipper for United States Veterans' Administration.
It appears from the petition that William J. Gregg was appointed the guardian of the above-named minor, such guardianship being necessary because of payments to be made to the minor from the United States Veterans' Administration.
The guardian is an attorney and he rendered services in connection with an obvious conference with the minor, or some one in his behalf, in connection with an application for an order authorizing the expenditure of funds for the purchase of clothing for the minor, preparation of an affidavit or a petition to this court and the preparation of an order allowing and approving such expenditure. The position by the Veterans' Administration is that as the guardian is himself an attorney there should be no allowance of compensation beyond the usual commissions because there has been no extraordinary services rendered.
An attorney is not to be penalized in acting as guardian or other fiduciary; as guardian he is required to do all those things which a lay guardian would be required to do and to receive therefor no further compensation than the statute permits, based upon a commissions formula, but when he performs services as an attorney he steps out from his roll as guardian and becomes to all intents and purposes a separate and distinct person. We have here Gregg, the guardian, and Gregg, the attorney. The services performed by Gregg, the attorney, are legal services, quite apart from the services he is required to perform as guardian and services which the lay guardian is not capable of performing. (See Matter of O'Connor, 265 A.D. 519; Matter of Urbanski, 233 A.D. 338; Matter of Berri, 130 Misc. 527; Matter of Moriarity, 27 Misc. 161; Surrogate's Ct. Act, § 285.)
An allowance of $15 to the attorney for the legal services mentioned will be allowed.
Order may be settled by consent or upon eight days' notice.