Opinion
December 29, 1997
Appeal from the Surrogate's Court, Westchester County (Emanuelli, S.).
Ordered that the order is reversed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Surrogate's Court, Westchester County, for a hearing on the reasonableness of the petitioner's application for commissions under SCPA 2312 (2).
SCPA 2312 provides that for trusts, such as those at issue here, which have a principal value of more than $400,000, "a corporate trustee shall be entitled to such commissions as may be reasonable", unless the governing instrument specifically provides for a different compensation (SCPA 2312). Therefore, the statute allows a corporate trustee to claim reasonable compensation as a matter of right.
The respondent-appellant has conceded, upon oral argument, that SCPA 2312 (2) is controlling. However, it is the petitioner's burden to prove the reasonableness of its application, and therefore, the matter is remitted for a hearing on that issue.
In the event the Surrogate determines that the trustee improperly claimed and paid to itself unreasonably large commissions, the judgment for any sum directed to be paid to the estates shall include an award of interest ( see, Matter of Smathers, 4 A.D.2d 784).
Mangano, P.J., Santucci, Joy and Lerner, JJ., concur.