38 N.J. Eq. 405 | New York Court of Chancery | 1884
Louis Stein, deceased, late of Hoboken, died in May, 1882,. leaving a will and codicil thereto, which were proved before the surrogate of Hudson county, on or about June 1st in that year, by the defendants, the executors named in the will. The complainant, the residuary legatee, filed his bill in this cause against them March 3d, 1884, alleging that they had paid all the debts and general legacies and satisfied the specific legacies, and praying that they be required to pay over to him the balance of moneys in their hands, and convey to him the real estate of which the testator died seized. This they have agreed to do on. certain conditions satisfactory to him, among which is the payment or allowance to them of their lawful compensation as-executors, and the question as to whether they are entitled to commissions on the value of the real estate (appraised for this purpose at $17,900) to be conveyed by them to him, is submitted to this court. By the will, the testator gives and devises to the
They are entitled to a commission of five per cent, on the appraised value of that property. The bill states, it may be remarked, that the complainant has offered to pay it to them. Where personal property is transferred by an executor to a legatee in the form in which he receives it from the testator, he is entitled to commissions upon its value. Pomeroy v. Mills, 10 Stew. Eq. 578. And it has been held that the principle applies to real property also. Matter of De Peyster, 4 Sandf. Ch. 511;
In the case under consideration the testator devises all his estate .to the executors and directs an out-and-out conversion of it. ITe therefore, of course, must be presumed to have contemplated such actual conversion when he made the provision for their compensation, which is in effect a legacy. He not only authorizes but requests them to retain for their compensation five per cent, of the money realized in the settlement of his estate (and to prevent misunderstanding he adds), both real and personal. What he meant was to give them, for their pay, five per cent, on the value of all his property, the value to he fixed by what it should bring or realize on actual conversion. They have had charge of the property in question, under the devise to them, for two years. Should they execute the power of sale under the will, there could be no question that they would be entitled to the percentage. The complainant, for his own advantage, seeks to restrain them from converting the property and to