In re Whipple

81 A.D. 589, 81 N.Y.S. 393

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1903
• Status: Published

Opinion

Patterson, J.;

The only matter necessary to be considered on this appeal relates to the allowance by the surrogate, on the settlement of the accounts of the executors, of commissions to such executors. Addison 0. Rand, by his last will and testament, appointed G-eorge E.- Whipple, Hugh Y. Conrad and Jasper R. Rand the executors of such will. Letters were issued to the three executors on April 24,1900. Jasper R. Rand died July 18, 1900. In the settlement, of the executors* account the surrogate has allowed commissions upon moneys.received and paid out by the surviving executors, in accordance with the rates authorized by section 2730 of the Code of Civil Procedure. The account is a final one, and the commissions allowed to the two surviving executors are awarded in strict accordance with the statute, except that there is a slight error in calculating the amount to which they were entitled. Each of the surviving executors is allowed by the surrogate’s. decree the sum of $5,421.92. A close calculation "would show that they were each entitled to $5,412.92. Each of them, therefore, has been allowed nine dollars too much. There is another error in calculating the amount of commissions to which the surviving executors were entitled, and that is, the allowance of commissions on the specific gift of shares of stock to one of the legatees. These commissions are twenty dollars to each of the surviving executors, and that, amount should be deducted. The surrogate was right in allowing to the éxecutrix of the deceased executor Jasper R. Rand commissions only upon such sums as were received and paid out during the lifetime of Jasper R. Rand. The provision of the statute would not allow of compensation to be made upon the basis of the inventory of the estate, but only for actual service in receiving and disbursing the moneys of the estate.

The decree should be modified by reducing the amounts allowed to the surviving executors as above indicated, and as thus modified affirmed, without costs in this court. ■

Yan Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs.