105 Misc. 423 | N.Y. Sur. Ct. | 1918
The executors in their account showed that the principal of the estate of the decedent that came into their hands amounted to less than $100,000. Subsequently and after a contest they were surcharged with the sum of $10,945.11, of which $7,481.04 was income and the balance principal, but even after such surcharge the principal remained less than $100,000.
There are three executors, and each of these claims to be entitled to a full commission, on the theory that the estate amounts to over $100,000. The special guardian objects to such an allowance, claiming that income and principal cannot be added together so as to bring the amount of an estate to the sum of $100,000, and thereby entitle each of several executors to full commissions.
An examination of the matters cited by the accounting executors and the statutes providing for compensation to executors or administrators in force when the same were under consideration disclose the following:
When Matter of Leggatt, 4 Redf. 148, was decided in 1879, the law provided that each executor or administrator up to three in number should be entitled to a full commission “ if the personal estate of the testator
It will be observed that there is a material difference between the language of this section and the statutes which governed commissions when the matters cited by the accountants were decided. So that even if it were assumed that the authorities referred to support the contention of the accountants, they would not necessarily do so with the statute changed as indicated above.
It is clear to me that the language of this provision contemplates the allowance of more than one full commission only in those cases where the principal of the estate amounts to over $100,000.
If this is so as to trustees, then as the same provisions exactly govern the commissions of executors, it must be equally true as to them. I see no reason for disagreeing with the conclusion reached by the court in Matter of Grossman, supra, and hold that only one full commission may be allowed herein. See, also, Savage v. Sherman, 24 Hun, 307; Chisolm v. Hamersley, 114 App. Div. 565; Matter of Willets, 112 N. Y. 289.
An objection is also made by the special guardian to any allowance of commissions upon a note belonging to the decedent in the hands of the executors and not collected by them. Under the authorities which I considered in Matter of Keane, 97 Misc. Rep. 213, I am of the opinion that this objection must be sustained.
One commission on the principal and income received and paid out by them except as to the amount of the
Decreed accordingly.