159 Misc. 900 | N.Y. Sur. Ct. | 1935
The questions raised with respect to the commissions of the temporary administrators are disposed of as follows:
(1) The surviving temporary administrators will be allowed one-half commissions on all moneys and personalty of the estate received by them, at the rate fixed by section 285 of the Surrogate’s Court Act, in the exercise of the discretion of the surrogate. (Matter of Runk, 181 App. Div. 461; affd., 224 N. Y. 570.) No commissions for paying the moneys and personalty to be turned over to themselves as executors will be allowed until they have fully and satisfactorily completed the administration of the estate as executors. It may be that the death of either of the executors, or their resignations, or removal for cause, or a future liability for a surcharge may require the surrogate, in his discretion, to deny the presently unpaid commissions upon the settlement of their accounts as execu
(2) In the discretion of the surrogate, the deceased temporary administrator will be allowed commissions on all moneys and personalty received and paid out by him during his lifetime at the rate fixed by section 285 of the Surrogate’s Court Act. (Matter of Ziegler, 218 N. Y. 544; Matter of Bushe, 227 id. 85; Matter of Barker, 230 id. 364.)
(3) The temporary administrators will be allowed as commissions five per cent of all rents collected by them from the real estate. (Matter of Althause, 122 Misc. 279; Matter of Walsh, 126 id. 479.) Section 285 of the Surrogate’s Court Act provides that an administrator “ shall be allowed and may retain ” such percentage of the rents collected. It is well settled under the- authorities that commissions are fixed and allowed at the rates in effect at the date of the settlement of the account of the representative. (Matter of Barker, 230 N. Y. 364; Matter of Ziegler, 168 App. Div. 735; Matter of King, 121 Misc. 530; Matter of Barrett, 124 id. 699; Matter of Jones, 136 id. 122.) Therefore, the retention of such five per cent commissions may only be made under the decree settling the account. The deceased temporary administrator will be allowed a one-third share of such five per cent of all rents collected during his lifetime. There shall be deducted, however, from such five per cent the expenses of the management of the real estate office maintained by them and those incidental to the collection of the rents. If the office was used solely for the collection of the rents and the management of the real property, then the entire cost of the maintenance of the office must be deducted from the five per cent of the gross rents in order to arrive at the net commissions. If the office was also used by the administrators in connection with the administration and management of other estate matters, they should separate the expenses incurred in connection with the management of the real estate from those incurred in the general administration of the other matters of the estate, and allocate to each their proportionate share of the expenses. An affidavit as to such allocation is directed to be served and filed within five days. .
Serve and file new computation of the commissions under these directions and submit decree on notice settling the account.