97 N.Y.S. 697 | N.Y. App. Div. | 1906
The sole ground of appeal is.the allowance of -commissions to an administrator appointed in case of supposed intestacy, who accounts - to the executor under a will subsequently produced and probated.
The opposition of the legatee is not based upon any alleged fault of the administration, but upon the illegality of the award. This court may examine the case upon facts and law and determine for itself whether upon the facts the decision was right. (Matter of Rogers, 10 App. Div. 593, and cases cited.)
I think that the point that commissions could not be allowed for the reason that the case presents a mere succession of administrator by executor cannot prevail in this case. The several cases cited by the learned counsel for the appellant, save one where the representative became demented, show resignations, and they were decided upon the principle declared by the vice-chancellor in Matter of Jones (4 Sandf. Ch. 616), that declination of duties once undertaken should not entail loss o'r expense upon the estate. And it was pointed out in some of the cases that were not this principle followed, then a series of resignations and successors might deplete the estate by as many commissions. But in the case at bar the administrator did not lay down his trust; he was divested of it perforce of the probate of the will. . There is not a suggestion that he ever knew of the will until some months after his receipt of the letters of administration. He was the husband of .the decedent, and with her at the time she was killed. The will was produced by the sister of his wife, and it does not appear that he is benefited by it. The record indicates that there is little or no sympathy between them, and indeed the sister is the objecting legatee. There is no reason to doubt that the administrator acted in entire good
I am of opinion that he is not entitled to any further commissions zin that he has not received or received, and paid out any other sums of money within the purview of section 2730 of the Code of Civil Procedure. “Sums received and paid out are made .the basis of computation.” , (Finch, J., in Phoenix v. Livingston, 101 N. Y. 456.) 'The.bulk of the estate consists of. deposits in various savings banks and of bonds and mortgages. The evidence is beyond question that the deposits; remained undisturbed and the securities untouched. Indeed the administrator frankly admits that the only cash he ever had in-his hands was the said .$125, collected as interest on a mortgage. The relation between the decedent and her depositary,, the savings bank, was ■ that of debtor and creditor. (Fowler v. Bowery Savings Bank, 113 N. Y. 450.) Whilé the administrator was entitled to receive the payment of the- deposit (Id.), .and. so to collect the debt, he did not, nor does it appear that he even transferred the account,, so that there is no room for contention that there was a technical collection and a redeposit in his
The securities cannot be regarded as money within the purview of this statute. (McAlpine v. Potter, supra.)
It is true that the decree permits the administrator to turn over the securities in specie, but this does not make them a basis for commission within the doctrine of McAlpine v. Potter (supra) that in such case they may be regarded as cash accepted by the legatee. This decree' is not for the legatee, but for the executor who
The order is reversed, 'without costs. The decree is reversed so far as it relates to commissions, without costs of this appeal to either party, and proceedings remitted to the Surrogate’s Court of Kings county to be disposed of in accord with this opinion.
Hooker, Gayror and Rich, JJ., concurred; Gayror,- J., however, thinks that the fixing of the commissions should be left to the surrogate .without any opinion from this court; Miller, J., dissented.
Decree of the Surrogate’s Court of Kings county reversed so far as it relates to commissions, without costs of this appeal to either party, and proceedings remitted to the Surrogate’s Court of Kings county to be disposed of in accordance with opinion of Jerks, J.