In re the Estate of Engel

106 Misc. 2d 733, 435 N.Y.S.2d 255, 1981 N.Y. Misc. LEXIS 2016

Opinion

OPINION OF THE COURT

William J. Regan, S.

The petitioner executor, by order to show cause, has submitted an application to the court for determination with respect to the entitlement of the petitioner for statutory commissions as executor of the Cecilia Rose Engel estate upon judicial settlement of the estate.

It appears that the last will and testament of the decedent provided in paragraph fourteenth as follows: “fourteenth : I nominate, constitute and appoint James Birke, of 911 Twelfth Street, North Tonawanda, New York 14120, Executor of this my Last Will and Testament. I direct that no commission or compensation shall be charged by or be allowed to any of my Executors for his services as such Executor. I direct that no bond or other security be required for the faithful performance of his duties as such.”

The petitioner, subsequent to letters testamentary being granted herein on August 11,1980, filed a renunciation renouncing the specific compensation provided in “Paragraph FOURTEENTH” of said will.

The petitioner maintains that having filed his renunciation, he is now entitled to the statutory commissions. (Matter of Montgomery, 61 NYS2d 712.)

The decedent, by paragraph fourteenth, was very specific in directing that “no commission or compensation shall be charged by or.be allowed to any of my Executors for his services as such Executor.” The petitioner’s attempt to circumvent the direction of the decedent by filing a renunciation cannot be condoned by this court. The petitioner herein was fully aware of this provision of the will and had the option at the time of the petitioning for probate of the same, to either file a renunciation to act as executor or accept the appointment with the understanding that statutory commission for acting as an executor would not be received by him.

It is the decision of this court, therefore, that the application of the executor is herein denied and that no statutory commissions are to be charged against said estate.