Opinion
November 30, 1972
Leftoff Hein for Gerda Joseph, as executrix, petitioner.
Hyman Klibanoff, guardian ad litem for incompetent.
Vincent F. Naro, guardian ad litem for infant.
In this proceeding to judicially settle the executrix's account, the guardian ad litem has raised objections to the allowance of executor's commissions because of the following provision in the will:
"SECOND: I hereby give and bequeath to GERDA JOSEPHS, residing at 139-48 86th Avenue, Jamaica, Borough and County of Queens, City and State of New York, all my personal tangible property in or about my apartment, as compensation for her services as executrix and/or trustee under this my Last Will and Testament and in lieu of all statutory commissions to which she might otherwise be entitled."
Although it appears that the household effects given in lieu of commission were virtually valueless, petitioner failed to take advantage of subdivision 5 of SCPA 2307, which provides that in order to receive statutory commissions the named executor must renounce the specific compensation provided in the will within four months of the issuance of letters testamentary. Accordingly, the court is precluded from allowing executor's commissions herein.
However, the above provision in the will does not deprive the petitioner of commissions in her capacity as preliminary executrix. ( Matter of Hillman, 280 App. Div. 310.) Preliminary letters testamentary were issued to petitioner and were in effect for a period of approximately 10 months prior to issuance of letters testamentary. Receiving commissions will be allowed on the assets actually received by the preliminary executrix. The affidavit amending the account shows payments of certain funeral and administration expenses during this period. Paying commissions will be allowed on the sums actually paid out during this period. While petitioner claims an increase in the value of the estate assets during this period of $2,000, no receiving commissions can be allowed on unrealized increases in the value of assets turned over by the preliminary executor to himself as executor. ( Matter of McVoy, 203 Misc. 33.)
The claim for counsel fees as set forth in Schedule C-1 is allowed in the amount requested for all services rendered, including preparation, entry and execution of the decree hereon. Letters of trusteeship shall issue to petitioner upon her duly qualifying.
Account settled.