Evening star., 1926-06-10
Justice Siddons, in Decision
on Adler Case, Sustains
Commissioner in Part.
AUDITOR is OVERRULED
IN HOLDING UP BOTH
Court Says Premium Was Col.
lected Through Misconception,
But Not Fraud.


from the bonding company for which
he was solicitor s5 per cent of the
premiums on surety bonds paid ny
his wards estate. as a commission. BY
Justice Frederick L. Siddons Of the
District Supreme Court.
The court. however. sustained in
part the exceptions filed by Mr.. Fen
ming to the report Of Herbert L. Davis.
auditor Of the court, which had denied
him any commission for his services
as committee Of Adolrh Adler. an in
sane World War veteran. and held
that the bond premiums should be
paid from Mr.. Jennings own funds
instead Of the wards estate. Justice
Siddens allowed Mr.. Fenning 5 per
cent OF the income Of Adler's estate
Tor 35o) for serving as committee the
past year and allowed him to charge
Of the bond premium to
the estate. The ward, therefore. will
pay only three.fourths Of the full pre-
mium on Mr.. Jennings surety bond.
Mr.. Fenning had asked for 10 per
cent, or 800.
Gives Up May I.
Mr.. Jennings practice up until sew.
eral months ago of accepting one
fourth Of the bond premiums paid by
his wards estate as commission for
before several congressional commit
tees. Since May l the Commissioner
has not held a license as a solicitor
of the United States Fidelity and
Guaranty Co. and, according to his
sworn testimony before investigating
bodies, he had not accepted the com
missions for a few months prior tc
that date, because the question OF
''propriety" was raised.
Had Mr.. Fenning not held a solic.
itor's license the premiums as paid
by the wards would be the same and
the commission would have been kept
by the agent who drew up the bond
In this event he would have made
ne proht and the estate Of the ward
would neither have suffered nor bene.
f1ted. BY Justice Siddons decision
today the estate Of Adler Is saved
one-fourth OF the premium. The bond
premium In this account was $3e.e7
and now this nsuce will be reduced
by $s.l7. which Mr.. Fenning had re.
ceived as his commission.
Fraud Not Intended.
Justice Siddons discussed the e5 Der
cent bond premium commission al
great length. citing precedent after
precedent. He then declared: I'm the
light OF the settled rule. as so plainly
indicated by the authorities cited
above. 1t is clear that Mr.. Fennine
cannot be allowed TO retain the sum
which he received as commission from
the surety upon his bond or under
taking In this case, which sum is one
fourth the amount paid by the estate
of the surety.
The evidence in this case does not
justify the view that Mr.. Fenninz
intended to perpetrate fraud or to
profit at the expense of the estate
to his hands. The evidence
shows, at most, a mistake Of judgment
or misconception Of what his duty as
committee required of him.
The two exceptions filed to the
auditors report by Mr.. Fenning were:
To that part Of said report which dis
allows his expenditure for premium
upon his bond and requires him to
pay the same from his own funds. and
denies his right to accept and retain
a commission on said premium" and
t2) 'in refusing to allow the commit
tee any commission whatever.
First Exception Sustained.
After discussing both cases fully,
Justice Siddons said: For the fore
going reasons, the first exception to
the auditors report will be sustained
to the extent Of allowing threefourths
of the bond premium claimed as
credit by the committee, and the sec
ond exception sustained to the extent
that Mr.. Fenning should be allowed
a commission or compensation Of 5
peg cent, based upon the amount of
income reported and accounted for in
the pending proceeding. and an order
to this effect will be settled and signed
on notice.
The court disapproves the action
tives of the Veterans Bureau to at
tend the hearings and participate In
the arguments before the auditor.
While the court appreciates the great
interest of the Veterans Bureau in
the welfare OF the veterans, the court
points out, the bureau should seek
permission to intervene from the
court. A reference to the auditor.
the court says, does not clothe that
Official with authority to invite any
one excepting parties in interest to
attend the hearings before him.
May Refund in All Cases.
Mr.. Fenning has stated before the
bodies that in the event
the court finds he cannot accept the
25 per cent commissions he would
with the order and not appeal
from it. When before the House ju-
dietary subcommittee he was asked II
he would make the refund to all es- :
tates involved and he indicated he
would.
Justice Siddons' decision began with
a comprehensive review Of the case
Of Adler. The veteran was transfer
red from st. Elizalbeth's Hospital in
1922 to a hospital in the Bronx. New
York. Last March Mr.. Fenning hfed
the final account. as the mans father
had qualified as guardian in the Stnte
Of New York. At the hearing on the
fnal account. Joseph Cans, a New
York attorney, and Mai. Davis G.
national guardianship ofiicer
Of the Veterans Bureau, argued
against the retention Of the commits
sion and declared 1t should be re-
funded to the ward. Mr.. Fenning held
that to do so would violate section s54
IF the District Code, forbidding rebates
IN insurance premiums, and also set
,orth the commission was compensa-
lion for services rendered by him to
he company. He made II clear that
I the bond had been secured from
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