In re the Estate of Barnett ( 1962 )

Maximilian Moss, S.

The executrix of the estate of a deceased trustee has accounted for the administration of the trust by her testator, and seeks an allowance of commissions for the benefit of the latter’s estate.

A new system of computing commissions of fiduciaries was enacted in 1956 (L. 1956, chs. 54, 931). A careful analysis of the changes, made by Paul J. Powers, secretary of the Surrogates’ Association, entitled “Fiduciaries’ Commissions ”, appears in the New York Law Journal, editorial page, April 25, 1956.

In addition to changes in respect of the commissions of executors, administrators and guardians, and of trustees under wills of persons who died on or prior to August 31, 1956, substantial changes were made with regard to commissions of trusts created under the wills of persons dying on or after August 31, 1956. The law in regard to the latter now appears in section 285-b of the Surrogate’s Court Act, entitled “ Commissions of trustees under the will of persons dying after August thirty-first, nineteen hundred fifty-six.”

In the present case, decedent died in 1960 and therefore the new section normally would be applicable. However, although the trustee qualified, he died before the trust was fully executed. The new section 285 of the Surrogate’s Court Act, and its subdivisions, are completely silent on the subject and as a consequence the question arises whether commissions may properly be awarded notwithstanding the absence of authority therefor in the said new section.

The court determines that the changes made to the various subdivisions of section 285 of the Surrogate’s Court Act were not intended to affect the power of the Surrogate under section 257 of the Surrogate’s Court Act, in the exercise of the court’s judicial discretion, to allow to the estate of a deceased fiduciary reasonable compensation for any services rendered by him to the estate, provided only that such compensation shall not exceed a full commission at the rates now newly established.

The court in the exercise of its discretion will allow the estate of the deceased trustee the sum of $250 as and for compensation for services rendered by him as trustee.