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In the Matter of the Estate of TOM REES, Deceased. In the Matter of the Accounting of W. CLIFFORD RODERICK, as One of the Executors of TOM REES, Deceased. TRUSTEES OF BRYN SEION WELSH CONGREGATIONAL CHURCH et al., Appellants; W. CLIFFORD RODERICK, as One of the Executors of TOM REES, Deceased, et al., Respondents.

Per Curiam.

The executor forfeited his right to commissions by his misconduct and unfaithfulness to his trust ( Cook v. Lowry, 95 N.Y. 103; Matter of Frame, 245 App. Div. 675; Matter of Junkersfeld, 244 App. Div. 260). While he may have believed the assignments he obtained to be valid, nevertheless, there was no justification for his conduct in treating the estate assets as his own while there were other persons beneficially interested in the estate. As to them he still owed the obligations of a fiduciary. His flagrant disregard of those obligations should not be rewarded by an allowance of commissions. The decree should therefore be modified by denying the executor's claim for commissions and, as so modified, affirmed, with costs to the appellants, payable out of the estate.

Peck, P.J., Glennon, Cohn, Callahan and Shientag, JJ., concur.

Decree unanimously modified by denying the executor's claim for commissions and, as so modified, affirmed, with costs to the appellants payable out of the estate. Settle order on notice.

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MATTER OF REES
(Jun 6, 1950)