In re the Estate of Moody

Appellate Division of the Supreme Court of New York

In re the Estate of Moody

125 A.D.2d 673, 510 N.Y.S.2d 18, 1986 N.Y. App. Div. LEXIS 62947

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 31, 1986

StatusPublished

Cited by7 cases

This text of 125 A.D.2d 673 (In re the Estate of Moody) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Estate of Moody, 125 A.D.2d 673, 510 N.Y.S.2d 18, 1986 N.Y. App. Div. LEXIS 62947 (N.Y. Ct. App. 1986).

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Opinion

— In an accounting proceeding, the appeal is from [674]*674an order of the Surrogate’s Court, Queens County (Laurino, S.), dated December 11, 1985, which, inter alia, fixed an attorney’s fee at $1,200 and held that the conveyance of a certain parcel of real property was not commissionable.

Ordered that the order is affirmed, without costs or disbursements.

No commissions are payable on real property unless the fiduciary sells the property (Matter of Schaich, 55 AD2d 914; SCPA 2307 [2]; Lipman, 1967 Practice Commentaries, McKinney’s Cons Laws of NY, Book 58A, SCPA 2307, p 363). The sale of the real property by the appellant was not done in his capacity of executor. Rather, he sold it to a named individual at a fixed price pursuant to the instruction and direction of the respondent residuary legatee. Such transfer by executor’s deed rather than by deed of the respondent was a mere incident of the conveyance. The transaction should be treated as if the real property passed to the respondent by operation of law and the appellant fiduciary never received the asset. Hence, the sale was not commissionable.

Finally, the Surrogate did not act improperly in reducing the counsel fee from $1,500 to $1,200. Mangano, J. P., Brown, Rubin and Eiber, JJ., concur.

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— In an accounting proceeding, the appeal is from [674]*674an order of the Surrogate’s Court, Queens County (Laurino, S.), dated December 11, 1985, which, inter alia, fixed an attorney’s fee at $1,200 and held that the conveyance of a certain parcel of real property was not commissionable.

Ordered that the order is affirmed, without costs or disbursements.

No commissions are payable on real property unless the fiduciary sells the property (Matter of Schaich, 55 AD2d 914; SCPA 2307 [2]; Lipman, 1967 Practice Commentaries, McKinney’s Cons Laws of NY, Book 58A, SCPA 2307, p 363). The sale of the real property by the appellant was not done in his capacity of executor. Rather, he sold it to a named individual at a fixed price pursuant to the instruction and direction of the respondent residuary legatee. Such transfer by executor’s deed rather than by deed of the respondent was a mere incident of the conveyance. The transaction should be treated as if the real property passed to the respondent by operation of law and the appellant fiduciary never received the asset. Hence, the sale was not commissionable.

Finally, the Surrogate did not act improperly in reducing the counsel fee from $1,500 to $1,200. Mangano, J. P., Brown, Rubin and Eiber, JJ., concur.

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125 A.D.2d 673, 510 N.Y.S.2d 18, 1986 N.Y. App. Div. LEXIS 62947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-moody-nyappdiv-1986.

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