In re the Estate of Picker , 520 N.Y.S.2d 137 ( 1987 )

OPINION OF THE COURT

Stanley S. Ostrau, S.

The trustees have filed their account for the period from October 18, 1965 to November 30, 1986. They have requested that the court determine reasonable commissions (annual principal commissions) under the circumstances that "annual valuation of principal assets since October 18, 1965 and the applicable annual rate of commissions are not readily available”. The approach suggested by the trustees is to add the value of the principal assets as of October 18, 1965 ($56,544.72) and their value as of November 30, 1986 ($78,247), divide that sum by 2 to arrive at an "average annual value” of $67,400, and then to compute the annual principal commissions for the 21-year period at the present annual rate of $8.50 per thousand as set forth in SCPA 2309 (2). This formula would result in the annual principal commissions totaling $6,479.75 for the 21-year period.

If an objection had been interposed by any interested party, it is questionable, at best, whether the court could deviate from the applicable statutory provisions for the years at issue. However, inasmuch as no objection has been filed, the court is sympathetic to applying a rule of reason which would permit the trustees to receive some annual principal commissions without requiring them or their counsel to spend more time in computing the commissions than is warranted by the total amount involved.

Nevertheless, the failure of the trustees to compute their annual commissions annually, as envisioned by statute (SCPA 2309 [2], [4]), warrants that every presumption as to the value of the assets for the years in question be made against the trustees and in favor of the beneficiaries. Moreover, it is not a difficult task to ascertain the actual applicable annual rates for the years in question. Following this principle, the value of the principal assets for each year, except the last year, is deemed to be $56,544.72 (the lowest known actual value for the years in question) and $78,247, the actual value for the last year. The actual annual rates for these years are $5 per thousand or major fraction until June 8, 1976, when the rate was changed to $7, which rate prevailed until August 6, 1984, when the rate was changed to $8.50.

Based upon the above, the court fixes the total amount of annual principal commissions for the 21-year period in the sum of $3,837.