35 N.J. Eq. 442 | N.J. Super. Ct. App. Div. | 1882
The orphans court of Morris county, on passing the final account of the executors (Messrs. Alfred Mills and Edward Pomeroy) of Gleorge Pomeroy, deceased, allowed them commissions to the amount of $25,876.65, being five per cent, on the amount of the estate which came to their hands to be administered. It allowed for “court’s and surrogate’s fees on the account, auditing,, stating decree and entering, recording copy &c., including drawing and posting notices of settlement and proof thereof,” $750. Josephine and Julia Pomeroy, two of the legatees, appealed from the decree by which those allowances were made. After they were made, Edward Pomeroy, one of the executors, objected to the allowances as being of far too large an amount, and moved the court for a reduction thereof. By his petition he accounted for his apparent consent to the allowance to the executors by the fact that he understood from his co-executor that the allowance would necessarily be at the rate of five per cent. The court reconsidered the matter, and by their order denied his application. The order recited that it appeared that when the account was subscribed and sworn to by the executors, the statement and prayer for allowance of the commissions appeared in the account in the very words and figures that appeared in the account as allowed ; that the petitioner, in his own right and as attorney in fact for the other two residuary legatees (the appellants), had full knowledge of the account and commissions so stated ; and that he, as executor, united in the prayer for commissions at the rate allowed ; that there was no fraud or mistake,- and that, considering the services rendered and responsibility imposed on the executors in the administration, they were entitled to the allowance. It will have been seen that the recital makes no mention of the allowance of $750 to the court and surrogate on the passing of the account. No items of that allowance are given, and it does not appear how much of the amount is allowed to the court and surrogate respectively. Obviously the allowance is grossly in excess of what would be proper under the circumstances. In fixing the compensation of the surrogate for auditing, stating and reporting an account, the statute should
The amount of commissions allowed to the executors is also excessive. Such of the personal property as was not delivered over to the legatees to whom it was specifically bequeathed, has been sold, but it was sold through brokers, whose commissions were paid out of the estate, and the securities which have been purchased have been bought in like manner. The time covered by the account is not over a year. The assets appear to have been readily convertible, and there does not appear to have been any matter of especial difficulty in the settlement of the estate. The executors are still charged with a duty in regard to the real estate — to raise and pay over to a trustee, the New York Life Insurance Trust Company, $100,000, and they are to take care of the property in the meantime; and it is suggested that, in the allowance of commissions, the trouble which they may have in discharging that duty was probably taken into account. But it is quite obvious that no allowance should have been made on that account. Thus to pay the executors in advance is not only to act, to a very great-extent at least, upon conjecture as to the trouble they will have in the future and the time they will be compelled to devote to the duty and the risk' they will incur, but is to make compensation for duty which they may never perform at all. And if one should die or become disabled, or remove away, or refuse to act, and the other should do the duty, the former would have been paid for the discharge of duty never performed, while the latter would have done the whole duty for only half of the
I deem it proper to say that I do not find that there whs any unfair conduct on the part of Mr. Mills with reference to the fixing of the commissions, either in his statements to his co-executor on the subject or in any other way, or any action warranting criticism. He appears, it may be added, to have facilitated the obtaining from the orphans court of the review of their