In re the Final Judicial Settlement of the Account of Cohen , 16 N.Y.S.2d 247 ( 1939 )

In a proceeding in the Surrogate’s Court, Richmond county, for the judicial settlement of the executors-trustees’ account, decree modified by striking out the provision which disallows the trustees’ claim for commissions on the real estate and by striking out the provisions providing for the payment of $2,000 to the seven objecting legatees; and the matter is remitted to the Surrogate’s Court of Richmond county to determine the amount of commissions payable to the trustees for receiving the real property, and to limit the amount of the surcharge to that necessary to pay the proportion of $2,000 to the seven objecting legatees which their interests bear to the interests of all the legatees. As thus modified the decree, in so far as appealed from, is unanimously affirmed, with costs to appellants-executors-trustees, payable out of the estate; and with costs to respondent Abraham Block and the special guardian, payable by claimant-appellant, Joseph Green, personally. The real property was devised to the trustees and they were authorized to sell. The property has, therefore, been received within the meaning of section 285 of the Surrogate’s Court Act, and the trustees are entitled to half commissions for receiving. (Matter of Berns, 188 App. Div. 215.) The surcharge should be limited to the amount necessary to satisfy the shares therein of the seven objecting legatees, namely, 3,000/18,300 of $2,000. (Matter of Garvin, 256 N. Y. 518; Matter of Stumpp, 153 Misc. 92, 100-101; Matter of Young, 156 id. 795, 800.) The evidence supports the disallowance of the claim against the estate made by appellant Joseph Green. There was no abuse of discretion in the allowance of attorneys’ fees. Present — Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ.