In re the Estate of Nickel — 125 Misc. 493

Majority

p. 493

In the Matter of the Estate of Charles F. Nickel, Deceased.

Surrogate’s Court, New York County,

June 12, 1924.

Headnote

Executors and administrators — commissions — executor serving as temporary administrator of estate received commissions pursuant to Surrogate’s Court Act, § 286, before 1923 amendment — decree awarding commissions res judicata and bars executor from claiming further commissions 'on same property calculated at rate fixed by Surrogate’s Court Act, § 286 (as amd. by Laws of 1923, chap. 649) — said executor entitled to commissions on any excess property coming into his hands since filing of account as temporary administrator.

An executor who, by the terms of a decree settling his account as temporary administrator, received commissions pursuant to section 285 of the Surrogate's Court Act before it was amended by the Laws of 1923, chapter 649, is not entitled to additional commissions as executor upon the same sum of money, predicated on the difference between the commissions received as temporary administrator and the sum allowed by the provisions of the said amendment to section 285, since he is barred by having elected to receive commissions at the rate provided by law as it was at the time of the entry of the decree. Moreover, the decree awarding commissions is res judicata.

He may, however, have commissions as executor on any excess of property coming into his hands since filing his account as temporary administrator.

Proceeding for an accounting involving executor’s commissions.

This is an executor’s accounting in which a question of commissions is presented for decision by reason of the fact that the executor previously acted and accounted as one of the temporary administrators of this estate. The decree settling the temporary administrator’s account and awarding commissions was filed on March 29, 1923, before chapter 649 of the Laws of 1923, which increased the rate of commissions to be awarded executors, administrators, and trustees went into effect (September 1, 1923). The accountant claims that as executor he is entitled to additional commissions on the same sum of which he was awarded commissions as temporary administrator to the extent of the difference between the commissions received by him as temporary administrator at the old rate and the amount he would be entitled to receive as executor under the increased new rate. He elected, however, under provision of section 285 of the Surrogate’s Court Act (Laws of 1920, chap. 928, as amd. by Laws of 1921, chap. 440), to take his commissions as temporary administrator. Having so elected and

p. 494

having secured a decree awarding him commissions at the rate provided by the law as it was at the time of the entry of the decree he is barred from any further commissions as executor, calculated at the rate fixed in the amended statute upon the same sum of money.

The decree awarding commissions is res adjudicatei. (Matter of Blossom, N. Y. L. J. July 17, 1917; affd., 181 App. Div. 932 , no opinion.) He may have commissions as executor on any excess of property that has come into his hands, since the filing-of his account as temporary administrator.

Proceed accordingly.