In re Duncan

3 Redf. 153 | N.Y. Sur. Ct. | 1877

The Surrogate.

— The question submitted is, whether the special administrator or collector is entitled to commissions, the same as executors and administrators, for receiving and paying out moneys. It has been assumed, generally, in practice that the special administrator was entitled to the same commissions as an ordinary executor or administrator, though the statute (2 R. S., 76, § 39,) makes no provision for his compensation, except that it provides that he may exercise such authority at such reasonable expense as the surrogate shall allow. I am of the opinion that the word expense in that statute does not refer to the compensation to be allowed a collector for the performance of his duty; but while his duties are somewhat restricted, yet he acts under the authority of the surrogate, is required to give security for the right performance of his duty, and under the act of 1870 (ch. 859, § 10), and under the authority of the surrogate, he may pay the debts of the estate. I see no reason why he should not be compensated at the same rate as an administrator, and where he accounts for the purpose of paying over the fund to the administrator when appointed, under the order of the surrogate, I am of the opinion that he should be allowed full per centage for receipt and payment over.

Order accordingly.