Estate of Bernstein
| Decision Date | 22 May 1978 |
| Citation | 405 N.Y.S.2d 958,94 Misc.2d 898 |
| Parties | ESTATE of Walter BERNSTEIN. Surrogate's Court, New York County |
| Court | New York Surrogate Court |
Eugene C. Greenwald, Jamaica, for petitioner.
Floyd S. Weil, New York City, for respondent.
Becker, Ross & Stone, New York City (Robert L. Klein, New York City, of counsel), respondents pro se.
Blum, Haimoff, Gersen, Lipson & Szabad, New York City (Richard R. Blakeman, New York City, of counsel), respondents pro se.
Gedalia Buchbinder, Brooklyn, for Jerusalem College of Technology.
Louis J. Lefkowitz, Atty. Gen. (Ann Winnizki, New York City, of counsel), for ultimate charitable beneficiaries.
Weiss, Rifkind, Wharton & Garrison, New York City (Bernard H. Greene, New York City, of counsel), guardian ad litem.
MILLARD L. MIDONICK, Surrogate.
In this executors' accounting proceeding, the guardian ad litem appointed to represent the interests of secondary income beneficiaries and remaindermen of the residuary trust created under the will has raised numerous questions with respect to attorneys' fees and commissions. Pursuant to a stipulation of settlement on the record in open court, the parties have resolved their differences with respect to attorneys' fees. The parties have agreed to submit for determination by the court on the papers the questions concerning the commissionability of a remainder interest for a trust created under the will of the decedent's brother and the amount of commissions due a deceased preliminary executor. The executors have also requested that the court determine the amount of income which is due beneficiaries who postdeceased the decedent.
With respect to the question of commissions to the executors, the guardian ad litem has questioned whether the decedent's interest in the remainder of a trust created under the will of his brother is commissionable. By decision of this court dated May 25, 1977 in the Estate of Herbert Bernstein, it was determined that the decedent, Walter Bernstein, had a vested remainder interest in a trust created under Herbert's will for the life benefit of Herbert's wife, who is still alive. On the death of Herbert's wife, the remainder of the trust will be payable to Walter's estate and that remainder interest was thus includible in Walter's estate for estate tax and accounting purposes at an actuarial value of $240,045. Nevertheless, the asset has not actually been received by the executors since Herbert's wife is still living and receiving the income of the trust. Unless Herbert's wife dies before the conclusion of this accounting proceeding, the vested remainder interest will presumably be assigned to the residuary trust created under Walter's will; in any event, the executors of Walter's estate will not receive the remainder interest so long as Herbert's wife lives.
The general rule regarding executors' commissions is that executors are not entitled to commissions upon uncollected receivables. (Matter of Hall, 73 N.Y.S.2d 304 (Surr.Ct., N.Y.Co., 1947); Matter of Keane, 97 Misc. 213, 162 N.Y.S. 856.) As was stated by Surrogate Silverman in Estate of Bonfig, N.Y.L.J., November 2, 1967, p. 19, col. 8: " . . . debts owed to the decedent (and derivatively to his estate) under a contract held by decedent are not part of the base for measuring commissions to the fiduciary except to the extent received by the fiduciary". As in Bonfig, these executors had to render certain services in relation to the remainder interest, including participation in the construction proceeding and consideration of the issues in connection with its inclusion in the estate for estate tax purposes. Nevertheless, as in Bonfig, supra, " . . . although commissions are paid to the fiduciaries as compensation for services rendered, the amount of the compensation is not measured by the amount of the services." Thus, the executors are not entitled to commissions on the amount of the remainder interest of the trust created under the will of Herbert Bernstein.
The estate of a deceased preliminary executrix requests that the court fix the amount of commissions due such executrix for services she rendered to the estate prior to her death. The estate of the deceased preliminary executrix urges the court to fix her compensation on total receiving commissions at...
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