See, e.g. In re McMillin, 120 N.J. Eq. 432 ( Ch. 1936); Gates v. Plainfield Trust Co., 123 N.J. Eq. 519 ( Ch. 1938); cf. 7 N.J. Practice, supra, § 1533, p. 234, n. 5. L. 1939, c. 134 settled any question by including the reference to intermediate accounts now found in N.J.S. 3A:10-2. CommercialTrust Co. v. Barnard, 27 N.J. 332, 346 (1958). But the section has never gone beyond this bare mention and, while the general statutory standards and the outside limitations of rate undoubtedly apply, the matter of more detailed criteria to govern the extent to which corpus commissions should be allowed intermediately is a matter for judicial decision. It is clear that the correct thesis of intermediate commissions has always been simply an award of some interim, on account compensation, within conservative limits and with full regard for all which may transpire before the administration is completed, in order to give some limited measure of present recompense to the fiduciary for time, effort and overhead. It follows that they should not be allowe
In fact, he insists that, under the applicable New Jersey law, compensation of fiduciaries can only be for services already rendered. In re McMillin's Estate, 120 N.J.Eq. 432; 185 Atl. 913; Conover v. Ellis, 49 N.J.Eq. 549; 25 Atl. 701. So that if he is correct his case would, in this respect, equally have been governed by the statute in its previous form.
N.J.S. 3 A:10-2 and 3 A:10-4. See Conover v. Ellis, 49 N.J. Eq. 549 ( Prerog. 1892); In re McMillin's Estate, 120 N.J. Eq. 432 ( Ch. 1936); Gates v. Plainfield Trust Company,123 N.J. Eq. 519 ( Ch. 1938); Appleby v. Appleby, 140 N.J. Eq. 8 ( Ch. 1947), affirmed 140 N.J. Eq. 403 ( E. A. 1947); Corry v. Passaic National Bank and Trust Company, 3 N.J. Super. 569 ( Ch. Div. 1949); In re Cox's Estate, 21 N.J. Super. 287 ( Ch. Div. 1952). Lastly, exceptants assert that the allowance of $21,160.43 for the services performed by Mr. Mason is unreasonable.
" While this provision relaxed the general rule that a trustee is not entitled to pay himself any commissions until his services have been completed and his account allowed, In re LocarnoBuilding and Loan Association, 127 N.J. Eq. 509; 13 Atl. Rep. 2d 791; Lathrop v. Smalley's Executors, 23 N.J. Eq. 192;In re Jula, 3 N.J. Mis. R. 976; In re Ahrend. 99 N.J. Eq. 328; Inre McMillin, 120 N.J. Eq. 432; 185 Atl. Rep. 913; Titsworth v. Titsworth, 107 N.J. Eq. 436; 152 Atl. Rep. 869; Pomeroy v. Mills, 35 N.J. Eq. 442: reversed on other grounds, 37 N.J. Eq. 578;Conover v. Ellis, 49 N.J. Eq. 549; 25 Atl. Rep. 701, by permitting the trustee compensation on account as the trust was being administered to meet the trustee's operating expenses, this court did not relinquish control of the trustee's final compensation. The general rule has since been likewise invaded by N.J.S.A. 3:11-2.
No commission will now be allowed. In re McMillin, 120 N.J. Eq. 432; In re New JerseyTitle Guarantee and Trust Co., 76 N.J. Eq. 293. The accountants ask that their counsel be allowed a fee for services during the period of three years covered by the account and for obtaining the court's approval of the account.
I am convinced it has such power. Vice-Chancellor Lewis in In re McMillin, 120 N.J. Eq. 432, upholds the power of the court to make such allowances. The vice-chancellor, interalia, said:
"It would obviously be improper to make an allowance which would exhaust or endanger the maximum fees permissible, as in the case of a substitution of trustees it would require the succeeding trustees to act without adequate compensation for the conservation of the corpus." In re McMillin's Estate, 120 N.J. Eq. 432 ( Ch. 1936). The applicable statutes provide as follows:
’ While this provision relaxed the general rule that a trustee is not entitled to pay himself any commissions until his services have been completed and his account allowed, In re Locarno B. & L. Ass'n, 127 N.J.Eq. 509, 13 A.2d 791; Lathrop v. Smalley's Executors, 23 N.J.Eq. 192; In re Jula's Estate, 130 A. 733, 3 N.J.Misc. 976; In re Ahrend, 99 N.J.Eq. 328, 132 A. 758; In re McMillin's Estate, 120 N.J.Eq. 432, 185 A. 913; Titsworth v. Titsworth, 107 N.J.Eq. 436, 152 A. 869; Pomeroy v. Mills, 35 N.J.Eq. 442, reversed on other grounds 37 N.J.Eq. 578; Conover v. Ellis, 49 N.J.Eq. 549, 25 A. 701, by permitting the trustee compensation on account as the trust was being administered to meet the trustee's operating expenses, this Court did not relinquish control of the trustee's final compensation. The general rule has since been likewise invaded by N.J.S.A. 3:11-2.
No commission will now be allowed. In re McMillin's Estate, 120 N.J. Eq. 432, 185 A. 913; In re New Jersey T. G. & T. Co., 76 N.J.Eq. 293, 75 A. 232. The accountants ask that their counsel be allowed a fee for services during the period of three years covered by the account and for obtaining the court's approval of the account.
I am convinced it has such power. Vice Chancellor Lewis in In re McMillin's Estate, 120 N.J.Eq. 432, 185 A. 913, 915, upholds the power of the court to make such allowances. The Vice Chancellor, inter alia, said: