Opinion
June 5, 1951.
Present — Peck, P.J., Glennon, Cohn, Callahan and Shientag, JJ.
The defendant and one of the plaintiffs (now deceased) cross-appeal from an order and final judgment in this action. We think that objections 1 and 5 involving taxes on the Ridgefield property should have been disallowed. It is our view that these items were properly chargeable to the corpus of the estate and should not have been surcharged to the defendant under the circumstances. We also think that the surcharge under objection 4 relating to maintenance expenses of the Ridgefield property should be limited to sums expended for housekeeper or maid service rendered by Margaret Liston, fuel, electricity, telephone, etc., or otherwise related to the living expenses of the defendant. The objection should have been overruled as to taxes and items (including entire salary of Archie Roberts) necessary for the physical upkeep of the property itself to prevent waste and deterioration. If the parties cannot agree as to the items entering into this surcharge, the court will receive memoranda on settlement of the order to be entered on this decision. The allowance to the attorney for the plaintiffs (other than Corry) should be denied. In our opinion the court was without power to grant such allowance as a charge against corpus. This litigation was not conducted on behalf of any class of persons or in autre droit. The recovery inured to the benefit of no one but the plaintiffs. The attorney's fee should be adjusted between himself and his clients. On all other issues raised by the cross appeals we think that the determination of the Special Term is correct. Order and final judgment unanimously modified as indicated herein and, as so modified, affirmed, with costs to the appellant Brenner. Settle order on notice.