In re the Estate of Moody

Dec 31, 1986
Versions:125 A.D.2d 673
510 N.Y.S.2d 18
1986 N.Y. App. Div. LEXIS 62947

— In an accounting proceeding, the appeal is from *674an order of the Surrogate’s Court, Queens County (Laurino, S.), dated December 11, 1985, which, inter alia, fixed an attorney’s fee at $1,200 and held that the conveyance of a certain parcel of real property was not commissionable.

Ordered that the order is affirmed, without costs or disbursements.

No commissions are payable on real property unless the fiduciary sells the property (Matter of Schaich, 55 AD2d 914; SCPA 2307 [2]; Lipman, 1967 Practice Commentaries, McKinney’s Cons Laws of NY, Book 58A, SCPA 2307, p 363). The sale of the real property by the appellant was not done in his capacity of executor. Rather, he sold it to a named individual at a fixed price pursuant to the instruction and direction of the respondent residuary legatee. Such transfer by executor’s deed rather than by deed of the respondent was a mere incident of the conveyance. The transaction should be treated as if the real property passed to the respondent by operation of law and the appellant fiduciary never received the asset. Hence, the sale was not commissionable.

Finally, the Surrogate did not act improperly in reducing the counsel fee from $1,500 to $1,200. Mangano, J. P., Brown, Rubin and Eiber, JJ., concur.