Opinion
March 10, 1958
Edward G. Wolff and Furman Greene for petitioner.
Harry J. Coman and Nathan Blumengarten for Joseph Di Canio, respondent.
John E. Perry for Angelina Curcio.
Stanley Kerwin for County Federal Savings Loan Association.
Nathaniel W. Schwartz, special guardian.
In the judicial settlement of the account herein, all objections other than those interposed by the special guardian have been disposed of.
The rejected claim of the County Federal Savings Loan Association has been settled by stipulation, which compromise was approved by the court at the hearing.
The first objection of the special guardian is directed to the funeral bill which he alleges is unreasonable and exorbitant. After a hearing the court allows the claim in the full amount of $826.10. The first objection is accordingly dismissed.
The second objection of the special guardian relates to an alleged failure on the part of the executrix to reject the claim of Angelina Curcio, which claim has been allowed and set forth by the executrix in Schedule D. At the hearing, testimony was adduced that sometime in 1950 the claimant, Angelina Curcio, loaned $800 to the decedent in connection with a real estate transaction. Since this claim has already been allowed by the executrix, section 210 of the Surrogate's. Court Act becomes operative and the burden is upon the objectant to "show that the claim or debt was fraudulently or negligently allowed, or paid". No claim was made by the special guardian that any fraud or collusion was involved in the payment of this claim, and the basis of his objection is apparently that payment was made negligently. However the court finds that under the circumstances here present, the executrix acted with reasonable care in allowing the claim. The burden was upon the objectant to establish negligence on the part of the executrix, and to overcome the prima facie presumption of the validity of the claim ( Matter of Meyer, 119 N.Y.S.2d 737; Matter of Finch, 81 N.Y.S.2d 658). Accordingly the second objection of the special guardian is also dismissed.
The final objection of the special guardian concerns the fee of the attorney, the basis of the objection being that it is excessive. On the facts here presented the fee sought is fair and reasonable. The court therefore dismisses the objection and fixes the attorney's fee and disbursements in the amount requested, to cover all services rendered, including the submission of a decree hereunder and implementation thereof.
Settle decree on five days' notice.