Foulds v. King

| N.Y. App. Div. | Nov 27, 1907

Sewell, J.:

The appeal is from' that part of the decree determining the amount of commissions and the allowance to the counsel for the temporary administrators.

It is urged -that the temporary administrators were not entitled to the commissions allowed.

First. Upon the value of certain shares of stock which were not taken into their possession.

Second. Upon a book account due to the decedent.

Third. Upon the value of 100 shares of stock bequeathed to John Anderson, Jr., and Albert Uewcombe, which were claimed to be specific legacies. '

The appellants contend that commissions should, have been allowed at the rate fixed by section 2730 of the Code, for executors and administrators, and upon the amount of money received and paid out by them.

It is clear from the authorities that the commissions of a temporary administrator are not based simply upon the money actually collected and disbursed, but upon the value of the whole éstate received and passed over by him.

The fact that a certificate of stock or a book account has not been received by a temporary administrator does not control or affect his right to commissions upon the value thereof. Certificates of stock are not securities for money; they are simply muniments and evidence of the holder’s title to a given share in the property and franchise of the corporation of which he is a member, and a delivery of the certificates is not necessary to perfect title. (Mechanics’ Bernik v. N. Y. & N. H. R. R. Co., 13 N.Y. 599" court="NY" date_filed="1856-06-05" href="https://app.midpage.ai/document/president-directors--co-of-mechanics-bank-v-new-york--new-haven-railroad-3631016?utm_source=webapp" opinion_id="3631016">13 N. Y. 599.)

I am also of the opinion that there is no force in the contention that Anderson and Hewcombe are specific legatees. A legacy is general when it is so given as not to amount to a bequest of a particular. thing distinguished from all others of the same kind. In those' cases in which legacies of stocks or shares in public funds have been held to be specific, some expression has been found from which an intention to make the bequest of the particular shares of stock could be inferred. The mere possession by the testator at the date of his will of stock of an equal or larger amount than the legacy will not of itself make the bequest specific. (Tifft v. Porter, 8 N.Y. 516" court="NY" date_filed="1853-06-05" href="https://app.midpage.ai/document/tifft-v--porter-3583114?utm_source=webapp" opinion_id="3583114">8 N. Y. 516 ; Holt v. Jex, 48 Hun, 528" court="N.Y. Sup. Ct." date_filed="1888-05-18" href="https://app.midpage.ai/document/holt-v-jex-5494789?utm_source=webapp" opinion_id="5494789">48 Hun, 528 ; Matter of Hadden, 1 Con. Surr. 306, and cases cited.)

The next point relied upon by the appellants is that the surrogate had no right to direct the payment by the temporary administrators to each of the counsel employed by them in the course of the administration of theiv trust the sum of $4,500.

The record shows that it was stipulated upon the hearing before the surrogate “ that the question of allowances and counsel fees shall be left to the discretion of the surrogate,” and it was conceded’ in the appellants’ brief that “ the amount of the claims of Edward M. Angelí and Joseph A. Kellogg, for the purposes of this appeal only, was not 'in question. In other words, the objection being to the power, jurisdiction and authority of the Acting Surrogate to audit these claims in any amount whatever, as presented, and filed, it did not raise here the question of. either the sufficiency or value of the services rendered.” These ¡stipulations and the fact that no witness was examined in behalf of the contestants touching the value of the services, have rendered it unnecessary to determine whether the amounts allowed were excessive, and the only question requiring consideration is whether a surrogate has authority to award any sum whatever to counsel employed by a temporary administrator, except the sum which can be allowed under sections 2561 and 2562 of the Code of Civil Procedure.

The rule is well settled that subject to the requirement of good faith and reasonable prudence an executor or administrator is entitled to employ an attorney for advice in reference to the management of the estate, and there can be no doubt that the power and duty of a temporary, administrator .in' regard to the employment of counsel are analogous to those of a permanent administrator. Section 24 of chapter 460 of the Laws of 1837 .provides that “ Every collector so appointed shall have authority to collect the goods, chattels, personal estate and debts of the deceased, and to secure the same' at such reasonable expense as.-the surrogate shall allow,” and section 2672 of the Code is to the same effect. It provides that “ The surrogate may also, by order, authorize him to pay funeral expenses, or any expenses of the administration of his trust.”

The respondents insist that none of these questions are before this court, as the surrogate did not make any findings of fact or law, and no exceptions were take'n to his decision or decree in. any form. Without considering this question we are of the opinion that the decree of the surrogate should be affirmed, .without costs.

Decree unanimously affirmed, without costs.