Hall v. Tryon , 1 Dem. Sur. 296 ( 1882 )

The Surrogate.

Our statute provides a compensation for executors based upon sums of money received and paid out. I know of no mode of computing commissions, other than is thus furnished by the statute. It is true that, where executors receive bonds and mortgages, or other securities belonging to the testator, and deliver them, in payment of general legacies, to legatees who receive them as cash, they will be entitled to commissions thereon, because the legatees chose to treat them as so. much money, and to receive them as such. Nor can I perceive how the fact that the interest on these bonds is intercepted for certain lives, before they are to be delivered, to those entitled to them in remainder, in specie, can in any manner affect the question: Had any of the bonds been sold, the question would have been very different, but they have not.

As the matter now stands, the executors cannot claim, in so far as the bonds are concerned, that they constitute a sum of money received by them, on which they are entitled to half-corn missions. It is abundantly settled that executors are entitled to no compensation for receiving and delivering specific legacies. If none of the bonds should be sold, and they should ultimately be delivered to those designated by the will to receive them, they will be so delivered as bonds, and not as money. At that time, they may be worth more than the value placed upon them in the inventory, and they may be worthless. However that may be, at this stage of the administration of the estate, I am of opinion that no commissions should be allowed, either on the face, or on the estimated, value of the bonds. There is no question but that they are entitled to commissions on the interest or income derived from them, which has been received and paid over.

The sole question about which there has been any contest is that relating to the commissions. This I regard as such a contest as will warrant the court, in its discretion, under section 2561, to allow the larger sum fixed as costs. It, therefore, seems that the contestants, having succeeded, are entitled to costs out of the estate, to be taxed; while the executors are entitled to an allowance under section 2562. These costs and allowances will be taxed in the usual manner.

Decreed accordingly.