In re the Judicial Settlement of the Account of Proceedings of New York Trust Co. , 1938 N.Y. App. Div. LEXIS 6135 ( 1938 )

Cross-appeals by the executors and the general guardian, respectively, from certain parts of a decree made at the Surrogate’s Court, Nassau county, settling the accounts of executors. Deeres modified by striking out the provisions awarding commissions and counsel fees to the executors and their attorneys and by providing, in lieu thereof, that no allowances shall be made for such legal services and that commissions shall be disallowed; by striking from the tenth ordering paragraph the words “ and they hereby are, directed to pay said sum out of any cash that may remain in their hands after payment of the amounts provided to be paid by the foregoing paragraphs 7, 8 and 9 hereof,” and by substituting therefor the following: “ and they are hereby directed to apply any cash now in their hands and that may hereafter come into their hands to the payment of said sums.” As so modified, the decree, in so far as an appeal is taken therefrom, is unanimously affirmed, with costs to the respondent-appellant, payable by the appellants-respondents personally. In our opinion, the executors were not authorized to continue the margin account, essentially speculative, but were required to liquidate it. Although it is clear that they acted in the best of faith, the failure to liquidate constitutes a dereliction of duty which requires, in accordance with the well-settled rule, a disallowance of commissions and counsel fees. Present — Hagarty, Davis, Johnston, Taylor and Close, JJ.