Van Houten v. Van Houten , 45 N.J. Eq. 796 ( 1889 )

The opinion of the court was delivered by

Dixon, J.

This appeal relates only to the allowance of commissions to t-wo trustees, who were appointed by the court of chancery instead of the trustees named in the will of Rachel Van Houten.

The objection first raised by the appellants is, that the chancellor had no authority to allow more than the rates mentioned in section 110 of the “Act respecting the orphans court, and relating to the powers and duties of the ordinary and the orphans court and surrogates.” Rev. p. 776.

This objection is not tenable. The practice of allowing compensation to executors,- administrators, guardians and trustees has long prevailed in New Jersey. Den v. Allen, Penn. *35, *44; State Bank v. Marsh, Sax. 288, 296. The earliest legislation limiting such allowances was passed March 17th, 1855, as a supplement to “An act respecting the orphans court and the power and authority of surrogates.” Nix. Dig. 561. Under that title it could not constitutionally control the court of chancery, and it was very soon judicially considered not to have that effect. Holcombe v. Holcombe, 2 Beas. 415-419. The present legislation is under a title somewhat broader, but which, still, •does not attempt to embrace the court of chancery. The discretion of that court on this subject is unfettered by statute.

The second objection is, that the allowance is excessive.

The trustees were appointed January 7th, 1881, and the decree for their discharge was made July 16th, 1888. The estate which came under their control comprised bonds and mortgages and cash amounting to $15;179.22, and twenty tracts of realty in or near Paterson, of which nine were improved. They had power to lease and to sell the real estate, and have sold, of that which was unimproved, more than $260,000 worth. At the time of their discharge there remained realty estimated to be worth $137,500, of which more than half was improved, and some had been bought in by them on foreclosure of mortgage. They have collected interest and rent amounting to about $80,000.

The chancellor, having previously awarded the trustees compensation at five per centum upon the income collected, and also -upon $52,961 of the corpus of the estate, made them a further allowance, by the decree now before us, of five per centum upon the residue of the corpus, being $224,852 of personal estate and $137;500 of realty. The entire estate amounts to nearly $500,000, and the commissions, therefore, to nearly $25,000.

We have examined carefully the nature and amount of the services rendered and the risk incurred by the trustees, and are of opinion that the allowance of five per centum upon the income should stand, and that the allowance upon the residue of the corpus should be so reduced as to make the entire allowance upon the corpus at the rate of three and one-half per centum.

Decree unanimously reversed.