In re the Estate of Dubin , 636 NYS2d 991 ( 1995 )

OPINION OF THE COURT

Lee L. Holzman, J.

In this ex parte application by the executor for an advance payment of commissions in the sum of $100,000, petitioner contends that he is not required to post a bond to secure the return of the advance payment if and to the extent it is ultimately disallowed because SCPA 2311 (5) provides that the fiduciary does not have to file a refunding bond "where the will specifically dispenses with such a bond”. The will provides as follows: "I * * * direct that no bond or other security of any kind be required of him in any jurisdiction whatsoever for the faithful performance of his duties as such Executor.”

The holding and suggestion in Matter of McDonald (116 Misc 2d 834) triggered the amendment to SCPA 2311 (5) creating an exception to the requirement that a fiduciary file a refunding bond to obtain an advance payment of commissions "where the will specifically dispenses with such a bond” (L 1984, ch 636, § 2). Surrogate Radigan held in McDonald that he was constrained by the then existing statutory language to require a refunding bond even though the will specifically provided that "advance” or "prepayment” of commissions could be made without a bond. Thus, when the Legislature created a new exception to permit the advance payment of commissions without filing a refunding bond "where the will specifically dispenses with such a bond”, it was specifically addressing the fact pattern in McDonald, where the will specifically dispensed with the bond for the advance payment of commissions. The amendment does not reflect an intent that the usual boilerplate language .dispensing with the bond for the faithful performance of the duties of the fiduciary suffices to dispense with the refunding bond otherwise required by SCPA 2311 (5) (Estate of Singer, NYLJ, Oct. 10, 1984, at 21, col 5; Milch, 1984 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 58A, SCPA 2310, at 122). This interpretation is consistent with the rule that fiduciaries, absent strict compliance with either SCPA 2310 or 2311, should not pay themselves any commissions prior to the completion of the administration of the estate or the judicial settlement of their accounts, and that the failure to comply with this rule may result in their being surcharged (Matter of Crippen, 32 Misc 2d 1019; Turano, 1988 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 58A, SCPA 2310, at 121).

Here, the will fails to specifically dispense with the filing of a bond for the advance payment of commissions and, accordingly, the application is granted upon the condition that petitioner file a refunding bond in the sum of $100,000.