In re the Estate of Newland , 7 Misc. 728 ( 1894 )

Sherman, S.

The personal estate of the testator exceeded in value more than $100,000-over all his debts. By his will he appointed Fred. A. Bentley and John J. Kinney, Esq., executors thereof, both of whom qualified upon probate of the will on October 8,1891, and continued to act together in administering the estate up to the death of said Kinney on February 19, 1893, since which time the surviving executor has acted alone in administering the estate. The executors during one year and four months prior to the death of Kinney had collected, paid out and • distributed to legatees and others a considerable portion of the estate of the testator, and then had in their hands, undistributed, money and securities of said estate of the amount and value of over $30,000. The learned counsel of the surviving executor strongly claimed, upon the argument and by his brief, that only one full commission should be allowed upon this settlement, and ¡that to the surviving executor, and none to the estate of the deceased executor.

I hold and decide that the surviving executor is entitled to receive as compensation for his commissions upon final settlement and distribution of this estate the same that 'by law he would have been entitled to if he had been sole executor, and in addition thereto one-half of the commissions, allowed by law, upon all the property of the estate on hand and undistributed at the death of his co-executor, John J. Kinney, on February 19, 1893.

And I hold and decide that the executor of the estate of said Kinney, represented in this proceeding, is entitled to full compensation for commissions, allowed by law, upon all the property of the estate of the said Robert Newland actually received, paid out, and distributed to legatees and others by both of said executors up to tbe time of the death of said Kinney, on February 19, 1893, and that the estate of said Kinney is also entitled to one-half the commissions allowed by law upon all the property of the estate of said Newland held by both executors and then remaining on February 19, 1893, undistributed, the same being in this case one-half of one per cent.; thus allowing, in all, two full commissions upon all the property, real and personal, of the decedent, Robert Newland, authorized to be sold and distributed under his will. Section 2736, Code Civ. Pro., as amended by chap. 686, Laws of 1893; Welling v. Welling, 3 Dem. 511; Matter of Garrison, N. Y. Law Journal, July 28, 1890; Matter of Kennedy, N. Y. Law Journal, June 13, 1891; Redf. Sur. Pr., 5th ed., note 2, 813; Smith v. Buchanan, 5 Dem. 169, holding that the proceeds of sale of real property made by the executors under the will are to be reckoned as part of the personal estate for the purpose of allowing commissions under section 2736- of the Code of Civ. Pro.; Matter of Kenworthy, 44 St. Rep. 275, holding that where the estate exceeds $100,000 personal property, over all debts of the decedent, and there are but three executors, each is entitled to full commissions based upon the whole estate, irrespective of which executor actually handled it. The above authorities appear to be in line with justice to the rights of all parties interested.

I direct decree accordingly, upon the final judicial settlement and distribution of this estate, and that ten days’ notice for the hearing and adjustment before the surrogate as to values and amount of commissions be given to all parties interested.

Decreed accordingly.