Opinion
October, 1895.
Burr Coombs, for plaintiff.
R. E.J. O'Gorman, for testamentary trustee.
This is an accounting by a testamentary trustee. Upon objections filed a reference was ordered. Upon the hearing proof was made as to one item which had been objected to and the objection was withdrawn, and as to another contested item it was admitted that it should be allowed. As to all the other items excepted to, it was conceded by the accountant that the objections should be sustained with the exception of certain payments claimed to have been made to counsel for legal services. As to these the contest proceeded and the referee has allowed and credited them to the accountant. Exceptions to such allowances were duly filed and are now insisted on. No bills for the alleged services were ever rendered to the trustee, nor is there any competent evidence of any of the details of the work done, and there are no vouchers for the payments produced except certain checks, which are drawn to the order of and indorsed and appear to have been collected by these attorneys, or one of them. Their aggregate is much larger than the amount which the accountant asks to be allowed to her here, but this is sought to be explained by her statement that the services were in respect to three trust estates, and that she charged to this one only one-third of the whole. The attorney who seems to have collected this money died before the petition was filed herein, and there is evidence produced showing that he died insolvent. An executor, trustee or other accounting party may be allowed upon such accounting "for his actual necessary expenses as appears just and reasonable." § 2730, Code. Under the sanction of this provision allowance is made for payments to counsel for their services by the accountant, but that class of "expenses" is entitled to no immunity from the inflexible rule that all disbursements which reduce the amount to be distributed to those interested in an estate must be shown to have been necessary to the proper administration of such estate, must be shown to have been actually rendered, and it must be further shown that the amount paid for them was reasonable according to their character and importance, and, it may now be said, with reference to the results obtained. Randall v. Packard, 142 N.Y. 47.
As above stated, no details of the services for which the contested payments were here made are furnished. It is shown that the trust estate embraced certain houses in this city, that the trustee did not live here, that she was inexperienced in business matters, that she did not, and she claims under the circumstances could not be expected to personally take charge of these buildings, that she employed an agent to look after them, collect rents, etc., that orders were made by the board of health which required this agent to see her attorney frequently, that she made payments to the trust beneficiaries through the latter, and that she sought his professional advice repeatedly; but all this is mere generalization, no proof of the value of the services given, no dates furnished, no particulars of the time spent, of the labor performed; nothing from which any court can put a value upon the work and say it is just and reasonable, or in fact upon which any professional witness could fairly predicate any opinion as to the actual work done, its necessity, its results or its value. The trustee is no doubt situated unfortunately; her attorney is dead and she can produce no bills or vouchers except these checks which do not give any information upon their face as to what they were given for, but this state of affairs does not relieve her from the usual burdens on an accounting. Again, much of the work which she claims was performed by counsel, such as payments to beneficiaries, looking after the agent of the property, etc., was just such work as it was her duty personally to perform and for which she is allowed commissions. If unable or unwilling to perform these duties she should have resigned her office. The exceptions to the referee's report are sustained. In view of the fact that objections were taken which had to be withdrawn, as well as in consideration of the apparent good faith of the trustee in her conduct of the administration, even in respect to her dealings with counsel which have been here criticised, she should not be charged personally with costs.
Exceptions sustained.