Vanderheyden v. Vanderheyden

2 Paige Ch. 287, 1830 N.Y. LEXIS 408, 1830 N.Y. Misc. LEXIS 40

• Court: New York Court of Chancery
• Decided: July 6, 1830
• Status: Published

Opinion

The Chancellor.

The question under the second, ex» ceptiori is no longer open for discussion in this court. In McWhorter v. Benson, ( 1 Hopk. Rep, 28 ) Chancellor Sanford examined this question and decided that the executor or guardian was entitled to all proper expenses in which he had been subjected in the care and management of the estate; and that he might employ an agent or clerk, and charge the estate with the expense, where, from the peculiar situation of the property or from its nature, it was beneficial for the i estate to subject it to that extra expense. But the executor or guardian, for his own services must, be confined to the allowance at a fixed rate, by way of commission on the monies received and disbursed, as settled by the court, in full for all his services in discharge of the trust. This exposition of the former law is now adopted and sanctioned by the legislature in the recent revision of the statutes. (2 R. S. 93, § 58 ; id. 153, § 22 ; Revisor’s note to § 54, tit. 3, ch, 6, pt. 2) I think the master was right in allowing commissions to be deducted at the annual rests, 'only to the extent of the monies which had been received and actually disbursed within the year. In the case mentioned by Hoffman, (Hedges v. Ricker, Hoff. Prac. 130,) the master refused to allow the per-centage on each sum received and paid out, but allowed it only upon the general aggregate. And this decision of the master was sanctioned by the court, on an appeal from his decision. The only doubt in this case is whether the master has not allowed too much, by deducting five per cent-, on the annual receipts and disbursments, and also the five per cent on the first $1000 of the final balance. I think, however tliát has been correctly allowed in this case; because the making of the annual rests for the purpose oí charging the defendant with interest on the balance is, in fact, an annual settlement of the account. As the court settles the account annually, so far as the trust fund has been disbursed, for the purpose of charging the defendant with interest, it is proper to consider it settled to the same extent for the purpose of deducting the commissions on the receipts and disbursements which have been offset against each other in that settlement.

The exceptions are overruled, and the report of the master is confirmed.