Waters v. Faber — 2 Dem. Sur. 290

Majority

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New York County.—Surrogate.

Hon. D. G. ROLLINS,

December, 1883.

Waters v. Faber. In the matter of the estate of Don Alonzo Cushman, deceased.

Headnote

Neither Code Civ. Pro., § 8736, nor any other statute, requires that two or more executors of an estate valued at §100,000, or upwards, though severally entitled to full commissions upon principal, are

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limited to the allowance of a single rate, as regards income. The double or triple rate, if awaxdable upon the principal fund, must be allowed also upon the income thereof.

Slosson v. Naylor, ante, 257—distinguished.

Judicial settlement of account of Gustaras W. Faber, and three others, trustees under decedent’s will. ° Caroline T. Waters, a daughter of decedent, appeared in the proceedings.

D. E. Jacques, for trustees.

James K. Hill, Wing & Shoudy, for C. T. Waters.

The decision of this court, in Slosson v. Baylor (ante, 257), does not sustain the claim of the contestant’s counsel, that these accounting parties are together entitled to only one commission upon income.

I held, in the Slosson case, that, in determining whether the value of a decedent’s personal estate does or does not amount to $100,000, within the meaning of § 3736, so as to entitle each of two or three executors to the full compensation of a sole executor, reference must be had to the estate as it existed at the time of decedent’ s death, and that the income could not for that purpose be taken into consideration. The case of Savage v. Sherman ( 24 Hun, 314 ), was referred to as an authority for that position.

But I find no warrant in § 3736, or in any other statutory provision, for claiming that commissions for receipts and disbursements are to be, in any case, limited to the principal fund, or that two or more executors of an estate valued at $100,000 or more.

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each of whom has become entitled to full commissions upon principal, are together limited to the allowance of a single rate as regards income.

The letter of the statute is in full accord with what I conceive to be its spirit. Only the single rate is to be granted, when the principal is less than $100,000. But if the principal equals that sum, or exceeds it so as to permit the allowance of the double or the triple rate, the double or triple rate is awardable also upon the income.