In re the Estate of Eno , 92 Misc. 658 ( 1915 )

Fowler, S.

A motion having been made by the trustees of' Columbia University in the city of Hew York, the residuary . legatee and devisee named in the paper submitted for probate-as the last will and testament of Amos F. Eno> deceased, for an order appointing temporary administrators of the estate of the decedent, and the motion having been duly heard, proposed decrees upon the said motion have been now submitted by the residuary legatee and by the contestants. The proposed decrees attempt to provide for commissions or compensation to which the temporary administrators may be entitled. The question of commissions' cannot be determined by the surrogate until the judicial settlement of the accounts of the temporary administrators, therefore any provision in the proposed decree limiting or determining the amount of such commissions must be stricken out. The proposed decrees also contain a direction that William P. Eno shall serve as temporary administrator, without compensation. Mr. Eno’s appointment was conditional upon his consenting to serve without compensation, and his consent to this condition should be filed in this court before the order is signed. The order should not contain a provision directing that he serve without compensation. I observe that the parties agree that the United States Trust Company shall be named as the depository. I am always pleased to have the parties agree when I think it is not inconsistent with the public interests. In this instance the selection is eminently proper. But that part of the proposed order submitted by the residuary legatee which directs that the United States Trust Company shall receive and collect the principal and the interest of securities should be struck out, as the United States Trust Company is named as a depository, and the court cannot impose upon it the active duty of collecting securities. This duty is properly placed upon the temporary administrators in folio 13' of the proposed decree presented by Messrs. Rash & Jones. That part of folio 17 which authorized the temporary administrators to take possession of the personal property should also be struck out, as it is merely declaratory of the law. ('Code Civ. Pro., § 2597.) The last .paragraph, which directs the temporary administrator to afford the attorneys for the contestants an opportunity to inspect and examine the papers, books and documents belonging to the decedent, should also, be stricken out, as the court has no power upon this motion to make such an order. In so far as the papers in the hands of the temporary administrators may be regarded as in custodia, legis, my desire will be that either the members of the testator’s family or his residuary legatee should have the fullest disclosure possible consistent with the justice due to the testator’s wishes in regard to his private and irrelevant papers. If it should become necessary for the attorneys for the contestants or the attorneys for the residuary legatee to have an inspection of any of the books or papers of the decedent they may apply to the court in conformity with the provisions of section 803 and section 809, Code of Civil Procedure. (Dale v. Stokes, 5 Redf. 586; affd., 28 Hun, 564.) The proposed decree submitted by the residuary legatee should be changed so as to conform to this decision and as then corrected presented to me for signature.

Decreed accordingly.