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In re Duncan

3 Redf. 153 Court N.Y. Sur. Ct. English

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p. 153
New York County.
HON. D. C. CALVIN, Surrogate.—
August, 1877.
Matter of Duncan. In the matter of the estate of Peter W. Duncan, deceased.

Headnote

While the provisions of the Bevised Statutes (2 R. S., 76, § 39, as amended by Laws of 1837, ch. 460, § 24, p. 529,) do not refer to compensation to be allowed’ to a collector of an estate or special administrator, still, since he is required to give security, and, under the statute of 1870 (1 Laws of 1870, ch. 359, § 10, p. 828,) may pay debts under authority of the surrogate, Held that upon his accounting and paying over the assets to the administrator appointed, he should be allowed the full commissions of an administrator.
The question determined came up on the accounting of a collector of a decedent’s estate, appointed by the surrogate.
Vernon & Hill, for the collector.
Henry Taylor, for the next-of-kin.

— The question submitted is, whether the special administrator or collector is entitled to commissions, the same as executors and administrators, for receiving and paying out moneys. It has been assumed, generally, in practice that the special administrator was entitled to the same commissions as an ordinary executor or administrator, though the statute (2 R. S., 76, § 39,) makes no provision for his compensation, except that it provides that he may exercise such authority at such reasonable expense as the surrogate shall allow. I am of the opinion that the word expense in that statute does not refer to the

p. 154
compensation to be allowed a collector for the performance of his duty; but while his duties are somewhat restricted, yet he acts under the authority of the surrogate, is required to give security for the right performance of his duty, and under the act of 1870 (ch. 859, § 10), and under the authority of the surrogate, he may pay the debts of the estate. I see no reason why he should not be compensated at the same rate as an administrator, and where he accounts for the purpose of paying over the fund to the administrator when appointed, under the order of the surrogate, I am of the opinion that he should be allowed full per centage for receipt and payment over.

Order accordingly.