113 N.Y.S. 384 | N.Y. Sur. Ct. | 1908
Upon the accounting of the executors of a deceased executrix the question is presented whether or not commissions should be allowed upon the sum of $40,000, the amount of a mortgage which was taken by the deceased executrix and which remained unsatisfied until after her death. The testator, during his life, agreed to convey certain real estate by a contract which was not performed at his death. Thereafter, pursuant to a judgment directing specific performance of this contract, the real estate was conveyed by the executrix, who re
The claim that the mortgage was bequeathed specifically and,, therefore, is not the subject of commission cannot be maintained. The cases cited on this contention all concern specific, legacies; while in this case the contract passed under the will as, a part of the general estate, to be devoted in its proportion to the payment of administration expenses and debts.
It is only for services in receiving and paying out money that, commissions are permitted. Code Civ. Pro., § 2730. This executrix has not received or paid out any part of the $40,000, nor is she within the scope of those cases which have allowed commissions upon securities. Matter of Brady, in this court, May 26, 1908. No one has taken from her the security in place of' cash, nor has any one been placed in a position to elect that the mortgage should be treated as money.
It is argued in behalf of the accountants that there was a trust in the will; but none appears, and the executrix could not have turned the mortgage over to herself as trustee. It is suggested that, upon the former accounting, the executrix was-found entitled to commissions upon the mortgage in question; but no such finding or direction is discovered in the report of the referee or in the decree cited.
There should be no commissions upon the accounting.
Decreed accordingly.
