102 A.D. 410 | N.Y. App. Div. | 1905
The appellant insists that the learned surrogate erred in three respects : First, in charging the executor with $410.46 instead of $183.46, as the balance of income in his hands; second, in allowing him only one-half of the commissions allowed by section 2730 of the Code of Civil Procedure; and, third, in charging him personally with the costs of the accounting; while the respondent insists that the surrogate erred in not charging the executor with the sum of $774.46 as the balance of income in his hands instead of said sum of $410.46. The difficulty is largely one of arithmetic and arises solely from two transactions. The respondent is the son of the testator and by the terms of the will is entitled to the net income of the estate, consisting of certain improved real estate in the borough of Brooklyn, and the dispute arises as to the amount of rentals of said real estate properly to be charged against the appellant. It is undisputed that the
By the account as presented it appears that the appellant has in his hands of income unexpended the sum of $183.46, and in making up the total of income are the two items of $1,066.86 rentals collected by the respondent and turned over to the appellant, and the sum of $1,000 transfered from the capital account to the income account, making a total of $2,066.86. The learned surrogate held that no reference should be made in any part of the account to said $1,000 item, but that the executor should be charged in the income account with the sum of $2,294, being the amount of rentals collected by the respondent, and as the executor had only charged himself with $2,066.86 of this amount, this increased the final balance to be charged against him by the sum of $227.14, which he never received, and as this was collected and retained by the
The learned surrogate, evidently on the theory that the executor had made out the account in the manner in which he did for the purpose of getting commissions to which he was not entitled, only allowed him one-half of the commissions allowed by statute, although there is no finding of misconduct or improper management of the estate. We think that the executor should have been allowed his full commissions, and that the learned surrogate also erred in charging the executor personally with the costs of the proceeding.
The decree appealed from should, therefore, he modified in the respects to which -attention has been called, and as modified affirmed, with costs to the appellant out of the estate.
Hirschberg, P. J., Bartlett and Woodward, J.J., concurred ; Hooker, J., not voting.
Decree of the Surrogate’s Court of Kings county modified in accordance with opinion of Miller, J., and as modified affirmed, with costs to the appellant payable out of the estate.