15 Abb. N. Cas. 198 | N.Y. Sur. Ct. | 1885
Among the assets of this decedent’s estate, at the time of his death, were certain corporate securities whose market value is subject to great fluctuations. Some of those securities are still in the hands of the executors who are here accounting, and the decree to be entered in this proceeding will direct their delivery to the testamentary trustees. Their present market value is less than the value which was put upon them at the time the executors filed their inventory. Under these circumstances, how must they be rated, in the computation of commissions ?
The statutory provision regarding commissions (§58, tit. 3, ch. 6, part 2, R. S.; 3 Banks, 7th ed., 2303) is in the following words : “ On the settlement of the account of an executor or administrator, the Surrogate shall allow to him, for his services..... for receiving and paying out all sums of money,” etc., “ at the rate,” etc.
A strict interpretation of the language just quoted would not authorize the award of commissions upon any assets of a decedent’s estate, except such as had been theretofore actually reduced to money; but it' has been repeatedly held that the provision should be so construed .as to treat the reception of every variety of assets as a reception of money, and the application of such assets to the discharge of debts and legacies, to the establishment of trusts, etc., etc., as a paying out of moneys, within the meaning of that expression in the statute (Cairns v. Chabert, 3 Edw. Ch., 312; Matter of De Peyster, 4 Sandf. Ch., 511; Wagstaff v. Lowerre, 23 Barb., 209; Ogden v. Murray, 39 N. Y.,
In still another particular, the statute above quoted has been liberally construed. Though, in terms, it seems to provide for the allowance of five, two and one half, and one per cent., commissions, upon such amounts, and such only, as have been both received and paid out, the courts have frequently sanctioned the allowance of half commissions for receiving, in advance of any paying out whatever. This practice seems to have obtained before the enactment of the present statute, and under the rule in Chancery established in conformity with the act of April 15th, 1817. That act authorized the Court of Chancery, in the settlement of the accounts of guardians, executors and administrators, to make them a reasonable allowance for their services, and provided that, when the rate of such allowance should be fixed by the Chancellor, it should be conformed to in the settlement of such accounts.
This rate was subsequently established by an order of the Court of Chancery (3 Johns. Ch., 631). It is in these words: a Ordered, that the allowance settled by the Chancellor as a compensation for guardians, executors and administrators in the settlement of their accounts ..... for receiving and paying money shall be five per cent., on all sums not exceeding $1,000 for receiving and paying out the same," etc.
In 1838, after the enactment of the existing law, a report of one of the Vice Chancellors came before Chancellor Walworth for confirmation (Matter of Kellogg, 7 Paige, 265). A guardian had received a
For an express determination of the precise question here .presented, I have vainly ransacked the law reports of this State; hut several of the decisions above cited seem to involve of necessity an implied determination, that, in computing the one half commissions for receiving, such assets as formed a part of a decedent’s estate at the day of his death, and continue to form a part of it at the time of the accounting, must be valued at the price they were worth in the market when they first came into the hands of the executor or trustee. For, in the cases above cited two propositions are clearly established :
Isi. That commissions for the receiving and paying out of moneys may justly be claimed by executors, guardians, trustees, etc., who have received and paid out assets never actually converted into money.
2d. That an accounting executor, guardian, trustee, etc., may lawfully be granted commissions for receiving such property, even when the property so received remains in his hands precisely as it reached them.
It is a necessary corollary from these propositions that, whenever, upon assets other than moneys, courts have allowed one half commissions for receiving, in advance of any paying out, such commissions have been computed upon estimated values that must, in many instances, have differed greatly from the values of such assets, as subsequently ascertained by actual sale, or as subsequently estimated in fixing
It would seem, therefore, upon grounds quite apart from those that are furnished bv the decisions to G/ •which I have referred, that the present value of the securities about to be delivered to the trustees is not the proper sum upon which to compute one half commissions for receiving. Indeed, there seems to be no more reason for computing, upon such a basis, the commissions for receiving than there is for computing commissions for paying out upon the basis of the value of these securities when they first came into the hands” of the executors. In adjusting commissions for receiving and paying out, such assets of a decedent’s
I have examined at random several accounts which, for one cause or another, have occasioned controversy in our appellate courts, respecting the proper adjustment of the commissions of the representatives of decedents’ estáis. Each of those accounts seems to have been prepared upon the theory that I have here approved, and none of them were, for that cause, subjected to adverse criticism.
For the foregoing reason, I hold that, in computing commissions upon the securities which formed a part of this, estate when it came into the hands of the executors—which have since been retained by them in the exercise of the discretionary authority given them by the testator’s will and which they are now