235 A.D. 635 | N.Y. App. Div. | 1932
Decree of the Surrogate’s Court of Kings county modified by striking out the provision thereof allowing to the respondent commissions as trustee and by substituting in place thereof a provision allowing respondent commissions on the principal sum of $15,000 received by it as executor, and as so modified affirmed, with costs, payable out of the estate, to each party appearing and filing a brief on this appeal. In our opinion the will contemplated a continued holding of the estate by the executor as such throughout the trust period, and the decrees made on former accountings, though conclusive as to the commissions allowed and paid to the respondent as trustee pursuant thereto, are not res adjudicata in this proceeding as to respondent’s status. The respondent is, therefore, entitled only to commissions on the principal sum of $15,000 received by it as executor and upon which it has not been paid any commissions. Lazansky, P. J., Young and Kapper, JJ., concur; Hagarty and Tompkins, JJ., dissent and vote to affirm. [140 Misc. 230.]
