Opinion
February, 1910.
Parsons, Closson McIlvaine, for petitioners.
J. Campbell Thompson, for contestants.
Raymond M. Lowes, special guardian, etc.
Bernard J. Tinney, special guardian for Elise Wall Ladew, an infant.
After having procured the report of the learned referee who tried the issues in this proceeding to be set aside because it was filed too late, and after much litigation as to how the new trial was to be had, the special guardian objectant offered in evidence the record as made before the referee, and, this being received, all parties rested. I agree with everything that the referee has stated in his opinion, and I adopt that opinion as my own. The payments of income on the trust funds to the general guardian of the infant, pending the accounting and before the making of the former decree, required no bond, for such income is neither a "legacy" nor a "distributive share" (Matter of Tucker, 28 Misc. 595), and the provision contained in the decree as to the filing of a bond required by section 2746, Code of Civil Procedure, did not defeat the right of the accountants to just credits for such payments. If an objection to the account had been made on that ground by the special guardian, and it was not made by him, such objection would have to be overruled.
The facts set forth in the report of the referee will be included in my decision and the separation of the funds of the separate trusts will be made as recommended by him. All of the objections to the account are overruled. The accountants will be paid costs of the proceeding out of the estate; no costs will be awarded to the special guardian. Tax costs and settle decision and decree on notice.
Decreed accordingly.