In re the Estate of Bulkeley

New York Surrogate's Court

In re the Estate of Bulkeley

136 Misc. 442, 243 N.Y.S. 239, 1930 N.Y. Misc. LEXIS 1375

DecidedMarch 12, 1930

StatusPublished

This text of 136 Misc. 442 (In re the Estate of Bulkeley) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Bulkeley, 136 Misc. 442, 243 N.Y.S. 239, 1930 N.Y. Misc. LEXIS 1375 (N.Y. Super. Ct. 1930).

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Opinion

O’Brien, S.

Claim is made in this accounting proceeding by the trustees for commissions at the rate of five per cent for collecting and paying out the amount of taxes payable under a lease entered into between the decedent as lessor and a lessee, on the theory that these taxes were in the .nature of rents for the collection of which commissions are allowable under the statute. The provision with respect to the payment of taxes in the lease is as follows: “ By way of further rental lessee will, as the same become due and payable, pay to the public officers charged with the collection thereof all taxes, assessments, and public charges which are now or may be hereafter during the term of this lease * *

Under the foregoing provision there was no duty upon the trustees to collect such taxes from the lessee and to pay them over to the proper authorities. That duty devolved upon the lessee. Section 285 of the Surrogate’s Court Act provides: “ Where a trustee or executor is, by the terms of the instrument, required to collect the rents and manage real property, he shall be allowed and may retain, five per centum of the rents collected therefrom, in addition to the commissions herein provided.” Neither under the terms of the will nor under the terms of the lease were the trustees required to collect these taxes, nor have any facts or circumstances been shown which might have required their collection and payment by the trustees.

Commissions thereon will, therefore, be denied. Correct decree accordingly and resubmit the same for signature.

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O’Brien, S.

Claim is made in this accounting proceeding by the trustees for commissions at the rate of five per cent for collecting and paying out the amount of taxes payable under a lease entered into between the decedent as lessor and a lessee, on the theory that these taxes were in the .nature of rents for the collection of which commissions are allowable under the statute. The provision with respect to the payment of taxes in the lease is as follows: “ By way of further rental lessee will, as the same become due and payable, pay to the public officers charged with the collection thereof all taxes, assessments, and public charges which are now or may be hereafter during the term of this lease * *

Under the foregoing provision there was no duty upon the trustees to collect such taxes from the lessee and to pay them over to the proper authorities. That duty devolved upon the lessee. Section 285 of the Surrogate’s Court Act provides: “ Where a trustee or executor is, by the terms of the instrument, required to collect the rents and manage real property, he shall be allowed and may retain, five per centum of the rents collected therefrom, in addition to the commissions herein provided.” Neither under the terms of the will nor under the terms of the lease were the trustees required to collect these taxes, nor have any facts or circumstances been shown which might have required their collection and payment by the trustees.

Commissions thereon will, therefore, be denied. Correct decree accordingly and resubmit the same for signature.

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Bluebook (online)

136 Misc. 442, 243 N.Y.S. 239, 1930 N.Y. Misc. LEXIS 1375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-bulkeley-nysurct-1930.