103 A.D. 520 | N.Y. App. Div. | 1905
The committee were appointed on the 29th day of October, 1903, and on the 11th day of bTovember, 1904, they instituted this proceeding for an intermediate settlement of their account. The committee were required to give a bond in the sum of $400,000. They received property of the incompetent of the value of $372,956. The committee asked to be allowed one-half commissions upon that part of the principal of the estate which has come into their hands and has not been converted into money. The object of the appeal is to review the denial of their application in that regard. The compensation to which the committee of the estate of an incompetent person is entitled is regulated by section 2338 of the Code of Civil Procedure, which provides that the compensation is the same as that to which an executor or administrator is entitled, but that in a special case, where the services exceed those of an executor or administrator, the court may allow additional compensation for such additional services. The compensation of an executor or administrator is regulated by section 2730 of the Code of' Civil Procedure, and literally it is confined to a commission upon moneys received and paid out. The opinion of the learned judge at Special Term shows that the application was denied upon the authority of McAlpine v. Potter (126 N. Y. 285), which holds that executors or administrators are not entitled to commissions upon the principal of the estate coming into their hands until converted into cash or accepted as if cash on distribution. We are of opinion that this decision is not controlling here. It is the duty of executors or administrators to convert the principal into cash for the purpose of paying debts and of distribu
It follows, therefore, that the order should be modified by allowing each member of the committee one-half of a full commission upon the value of the principal of the estate, as found by the referee, received and not converted into cash, which will be specified in the order, and as thus modified affirmed, with disbursements to the appellants.
Van Brunt, P. J., Patterson and Ingraham, JJ., concurred; McLaughlin, J., concurred in result.
Order modified as directed in opinion, and as modified affirmed, with disbursements to the appellants.