In re the Estate of Gokey

205 Misc. 266, 128 N.Y.S.2d 321, 1953 N.Y. Misc. LEXIS 2645

• Court: New York Surrogate's Court
• Decided: December 28, 1953
• Status: Published

Opinion

Rubenstein, S.

This is an application by the executors under section 285-b of the Surrogate’s Court Act, for a payment on account of their commissions. They request that a bond be dispensed with on the acknowledged consents of the interested parties, all competent adults.

The section was enacted on the recommendation of the executive committee of the New York Surrogates Association. The note of the committee appended to the section states that its purpose is to provide a means whereby fiduciaries may obtain an award of commissions without the necessity of filing an intermediate account. Until the effective date of the section, commissions could be awarded only by the decree settling the account. The section was intended to relieve fiduciaries from the undue hardship sometimes imposed by the lump sum award of commissions and at the same time protect the beneficiaries of an estate from payment of commissions to unfaithful fiduciaries or overpayment of commissions. The protection undoubtedly referred to is the requirement of the filing of a bond to secure the return of such payment on account of commissions.

The court is of the opinion that the provision for the filing of a bond is mandatory and may not be dispensed with even on the consent of the parties. No discretion is vested in the Surrogate as is the case in other sections of the Surrogate’s Court Act relating to the filing of bonds.

The application is granted but on condition that a bond in the sum of $3,500 be filed.

Proceed accordingly.