Ricard v. Laytin

The Surrogate. This application is resisted upon two grounds: 1st, that Mrs. Ricard, being of age, was concluded by her receipts in full, which were given on [589] complete knowledge of all the facts; and 2nd, that her administrator is precluded from the relief sought, by reason of laches in making the application. As to the first point, it would seem that the executors acted with perfect fairness in submitting to Mrs. Ricard, at each payment of income, a complete statement in figures showing in detail the amount received, the expenditures, and the amount proposed to be, and which was, retained as commissions. She, therefore, had an exact knowledge, when she gave her receipts in full, of all the essential facts relating to the subject of commissions. Clearly, the executors believed themselves to be entitled to such commissions; and although I held differently on the last accounting (Meeker v. Crawford, 5 Redf., 450), yet the subject has still to be settled by our highest court. The case of Drake v. Price (1 Seld., 430) seems to have caused some doubt and conflict of opinion, as to whether executors acting in a special fiduciary capacity, in receiving and paying out income, are entitled to full commissions on it at each payment; and I have now pending before me a claim made by an exécutor, who is a lawyer, to just such commissions. His argument is, that the law of 1866, which was in force when he was appointed, and under which he obtained vested rights in that regard, provided that the Surrogate should allow to trustees, on all accountings, the same commissions as were allowed to executors and administrators, and that, therefore, he is entitled to full commissions on each accounting. The most that can, therefore, be said in this case, is that it was purely a question of law, involved in some doubt, and if the parties were mistaken, on the subject, that fact furnishes no ground for re [590] dress. There is nothing to sustain the allegation oí fraud; there was no clerical error; and there is no pretence of the discovery of new evidence in the case. On the second ground also, I think the application must be denied. The administrator of Mrs. Ricard is presumed to have come into possession of the statements furnished to her by the executors in her lifetime.' He was a party to the last accounting, and states, in his affidavit, that his attention was first drawn to the matter by the opinion delivered by me in January, 1882, in that case. The application was made on October 10th, 1883, which was about a year and nine months after he says his attention was so drawn to the matter. After having thus acquired the necessary knowledge, he should have at once asked for such relief as he deemed himself entitled to, and not have delayed action for nearly two years. Under such circumstances the law does not permit a man to lie idle without imposing, as a,penalty, the ripening of an alleged wrong into an established right. The application must be dismissed, with costs of the motion to the executor.