181 A.D. 461 | N.Y. App. Div. | 1918
This is an appeal from a decree of the Surrogate’s Court in the county of New York settling the accounts of the temporary administrators of the estate of Jessie Gillender, deceased.
Miss Gillender, the decedent, died on February 25, 1916, leaving a last will and testament by which she disposed of a considerable estate consisting partly of realty and partly of personal property. A contest arose over the probate of her will pending which the accountants were appointed temporary administrators of her personal property. They were also directed to take possession of her real estate and to receive its rents and profits, being authorized to make leases for terms not exceeding one year. They entered upon the performance of their duties and duly fulfilled them until May 23, 1917, when the will was admitted to probate and letters testamentary issued to the executors named therein.
The temporary administrators have presented their accounts to the surrogate and they have been settled and approved.
The appellant, the residuary legatee named in the will, makes but two objections to the decree, as follows: First, it objects to the allowance to one of the temporary administrators of a sum for counsel fees for services rendered to the temporary administrators; and second, it objects to the allowance to the other temporary administrator of commissions calculated upon the fee value of the real estate which forms a part of the estate.
As to the first objection:
One of the temporary administrators was Charles A. Bunk, Esq., a capable and experienced member of our bar, who had been for a long time the friend and legal adviser of the decedent, and who was named as one of the executors of her will. It was arranged between the two temporary administrators that Mr. Bunk should attend to such legal matters as might arise, and no question is made as to the extent or the value of his services.
Although temporary or special administrators, formerly termed collectors, have been provided for by statute ever since the year 1837 (See Laws of 1837, chap. 460, §§ 23, 24), ho statute has ever specifically fixed their compensation, but it
As to the second objection :
Mr. David J. Mooney, one of the temporary administrators, claims and has been awarded commissions upon the fee value of the real estate comprised in the estate, in addition to his commissions upon the personalty and the cash which has passed through his hands. The basis for this claim, for which no precedent is cited to us, is found in that portion of section 2753 of the Code of Civil Procedure, as amended by Laws of 1916, chapter 596, which reads as follows: “ The value of any real or personal property, and the increment thereof, received, distributed or delivered, shall be considered as money in making computation of commissions. But this shall not apply in case of a specific legacy or devise.”
This clause relates only to property, whether real or personal, “ received, distributed or delivered,” and unless the temporary administrators may be said, in legal contemplation, to have “ received ” the real estate it is clear that they are not entitled to commissions upon its value. Ordinarily, executors and administrators, as such, have nothing to do with the real estate, and can neither “receive” nor “deliver” it, and temporary administrators stand in the same position. They are mere collectors or conservators of the personal estate, to hold and protect it until permanent executors or administrators are appointed. It is true that by section 2600 of the Code of Civil Procedure the surrogate may, as he did in this case, authorize a temporary administrator to take possession of the real property belonging to the estate and to receive the rents and profits thereof. It is quite clear that such an authorization does not confer upon a temporary administrator any title to the real property or any other right than to take such possession as may be necessary to collect the revenue therefrom. In no legal sense can he be said to “ receive ” the real property as that word is used in the section above referred to. His relation to the real property is exactly analogous to the frequent case of a receiver of the rents of mortgaged premises during the pendency of a foreclosure
The decree will, therefore, be modified by reducing the commission allowed to the accountant Daniel J. Mooney to $4,313.80, and as so modified affirmed, with costs to appellant and to Charles A. Eunk, respondent, payable out of the estate.
Clarke, P. J., Laughlin, Page and Shearn, JJ., concurred.
Decree modified as stated in opinion and as modified affirmed, with costs to appellant and to respondent Eunk payable out of the estate. Order to be settled on notice.