In re the Estate of Nickel

125 Misc. 493, 209 N.Y.S. 677, 1924 N.Y. Misc. LEXIS 1123

Opinion

O’Brien, S.:

This is an executor’s accounting in which a question of commissions is presented for decision by reason of the fact that the executor previously acted and accounted as one of the temporary administrators of this estate. The decree settling the temporary administrator’s account and awarding commissions was filed on March 29, 1923, before chapter 649 of the Laws of 1923, which increased the rate of commissions to be awarded executors, administrators, and trustees went into effect (September 1, 1923). The accountant claims that as executor he is entitled to additional commissions on the same sum of which he was awarded commissions as temporary administrator to the extent of the difference between the commissions received by him as temporary administrator at the old rate and the amount he would be entitled to receive as executor under the increased new rate. He elected, however, under provision of section 285 of the Surrogate’s Court Act (Laws of 1920, chap. 928, as amd. by Laws of 1921, chap. 440), to take his commissions as temporary administrator. Having so elected and having secured a decree awarding him commissions at the rate provided by the law as it was at the time of the entry of the decree he is barred from any further commissions as executor, calculated at the rate fixed in the amended statute upon the same sum of money.

The decree awarding commissions is res adjudicatei. (Matter of Blossom, N. Y. L. J. July 17, 1917; affd., 181 App. Div. 932, no opinion.) He may have commissions as executor on any excess of property that has come into his hands, since the filing-of his account as temporary administrator.

Proceed accordingly.