Drake v. Price , 7 Barb. 388 ( 1849 )

By the Court, Barculo, J.

The defendants, executors of Hunter’s will, invested $5000 for the plaintiff, Mrs. Drake, pursuant to directions of the will, to pay over to her the interest. This they have done for several years, retaining Jive per cent of the interest moneys as commissions, after having had full commissions on settling the estate. The plaintiffs sue to recover back four per cent, contending that only one per cent can lawfully be taken. I so decided at the special term.

I still think the decision right. The case of Valentine v. Valentine, (2 Barb. Ch. Rep. 430,) is an authority for saying that commissions are not to be taken in two capacities, i. e. as executors and as trustees. And although in Vanderheyden v. Vanderheyden, (2 Paige, 287,) full commissions were allowed upon the annual receipts and disbursements, yet it was solely upon the ground that the annual rests, made for the purpose of charging interest against the guardian, were to be considered annual settlements of the accounts. It seems to me that this case is a mere continuance of the executor’s duties, and that having received full commissions on $5000, they can only take one per cent upon the proceeds of the fund, and are not permitted to begin anew every year.

The judgment should be affirmed with costs.

Judgment affirmed.