Will of Boddy, Matter of

CourtNew York Surrogate Court
Citation136 Misc.2d 87,517 N.Y.S.2d 877
PartiesIn the Matter of the Judicial Settlement of the Account of Chase Lincoln First Bank, N.A., as Executor of the WILL OF Florence C. BODDY, Deceased. Surrogate's Court, Monroe County
Decision Date30 June 1987

Page 877

517 N.Y.S.2d 877
136 Misc.2d 87
In the Matter of the Judicial Settlement of the Account of
Chase Lincoln First Bank, N.A., as Executor of the
WILL OF Florence C. BODDY, Deceased.
Surrogate's Court, Monroe County.
June 30, 1987.

Nixon, Hargrave, Devans & Doyle, Rochester, for petitioner.

Sutton, Deleeuw, Clark & Darcy, Rochester, for Residuary Legatee.

Page 878

DECISION

ARNOLD F. CIACCIO, Surrogate.

In this proceeding to judicially settle the accounts of the executor, the sole beneficiary of the estate, Emma Durfee, objectant, has filed objections to the account. The objections are three fold: (1) the accounting party should not be entitled to continuing commissions after completing its services as executor; (2) the accounting party should not have paid itself a sum of money for preparation of decedent's final income tax return--this objection has been withdrawn; (3) the accounting party has disregarded a contract under which it has agreed to specific commissions at a reduced rate.

The nature of the objection enumerated (1) involves the fact that the accounting submitted by petitioner accounts for the period from August 29, 1984 to October 6, 1986. The objectant avers that presumably having accounted to October 6, 1986, the executor's services were completed on that date and it is improper for it to charge additional fees on the income earned from the date of the accounting to the return date of the citation which commences the proceeding in March of 1987 some five months later. While it is conceded that there is no statutory time during which the accounting must take place, it is argued that public policy encourages the timely settlement of estates and timely accounting by accounting parties. The objectant argues further that to permit additional commissions for the "waiting period" between the time of the accounting period and the court date places the institution in a position where it simply can hang on to funds and increase its compensation.

FACTS

Florence C. Boddy died April 16, 1984, her will dated June 13, 1967 was duly admitted to probate in this Court and Chase Lincoln First Bank, N.A. was appointed executor on September 4, 1984. From then until January 16, 1985, Chase Lincoln as executor performed its duties in accordance with the law, marshalling assets, paying legacies and filing tax returns. In April 1986, the Internal Revenue Service audited the federal estate tax return and a final closing letter was obtained on July 18, 1986. An amended order fixing New York State estate tax based upon the federal adjustment was signed by this Court on July 29, 1986. Chase Lincoln then prepared the present accounting and signed it on October 6, 1986. The account as filed computes the executor's commissions on the assets as shown and further states, "an executor's income commission will continue to be computed and collected at the rate of 3% on all income received from the date of the accounting to the date of the decree."

A fiduciary's right to compensation is a creature of statute. (Matter of Jadwin, 58 Misc.2d 809, 296 N.Y.S.2d 901) At common law fiduciaries provided services without such compensation. (Matter of Smathers, 309 N.Y. 487, 131 N.E.2d 896) It was an honor to serve and no one expected to be compensated. Courts have therefore strictly construed statutes providing for fiduciary compensation. (Matter of McDonald, 116 Misc.2d 834, 456 N.Y.S.2d 657; Matter of Stillman, 82 Misc.2d 736, 371 N.Y.S.2d 78). Nevertheless, unless a fiduciary has been delinquent in carrying out his or her responsibilities, courts have adhered to the statutory allowances. (Matter of Bernstein, 94 Misc.2d 898, 405 N.Y.S.2d 958).

As indicated by former New York County Surrogate Samuel DeFalco in Matter of Tucker, 75 Misc.2d 318, 347 N.Y.S.2d 845 the Court has the inherent...

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3 practice notes
  • Jackson & Nash LLP v. E. Timothy McAuliffe PLLC
    • United States
    • New York Supreme Court Appellate Division
    • December 28, 2010
    ...74 A.D.2d 906, 426 N.Y.S.2d 66 [1980], appeal dismissed 50 N.Y.2d 1059, --- N.Y.S.2d ----, --- N.E.2d ---- [1980]; Matter of Boddy, 136 Misc.2d 87, 89, 517 N.Y.S.2d 877 [1987] ), and at that time McAuliffe was no longer a partner of the firm. Had the partnership agreement used another term,......
  • Estate of Chrestensen, Matter of, No. 1
    • United States
    • New York Supreme Court Appellate Division
    • July 12, 1991
    ...payment of executor's commissions be calculated from the combined assets of the estate and the trust (SCPA 2312[1]; see, Matter of Boddy, 136 Misc.2d 87, 90, 517 N.Y.S.2d 877). Furthermore, there was no need for the appointment of a guardian ad litem for allegedly unknown beneficiaries (see......
  • Jackson & Nash v. E. Timothy Mcauliffe PLLC, 3286
    • United States
    • New York Supreme Court Appellate Division
    • December 28, 2010
    ...until December 2005 (see Matter of Maurice, 74 AD2d 906 [1980], appeal dismissed 50 NY2d 1059 [1980]; Matter of Boddy, 136 Misc 2d 87, 89 [1987]), and at that time McAuliffe was no longer a partner of the firm. Had the partnership agreement used another term, such as "earned," the......
3 cases
  • Jackson & Nash LLP v. E. Timothy McAuliffe PLLC
    • United States
    • New York Supreme Court Appellate Division
    • December 28, 2010
    ...74 A.D.2d 906, 426 N.Y.S.2d 66 [1980], appeal dismissed 50 N.Y.2d 1059, --- N.Y.S.2d ----, --- N.E.2d ---- [1980]; Matter of Boddy, 136 Misc.2d 87, 89, 517 N.Y.S.2d 877 [1987] ), and at that time McAuliffe was no longer a partner of the firm. Had the partnership agreement used another term,......
  • Estate of Chrestensen, Matter of, No. 1
    • United States
    • New York Supreme Court Appellate Division
    • July 12, 1991
    ...payment of executor's commissions be calculated from the combined assets of the estate and the trust (SCPA 2312[1]; see, Matter of Boddy, 136 Misc.2d 87, 90, 517 N.Y.S.2d 877). Furthermore, there was no need for the appointment of a guardian ad litem for allegedly unknown beneficiaries (see......
  • Jackson & Nash v. E. Timothy Mcauliffe PLLC, 3286
    • United States
    • New York Supreme Court Appellate Division
    • December 28, 2010
    ...until December 2005 (see Matter of Maurice, 74 AD2d 906 [1980], appeal dismissed 50 NY2d 1059 [1980]; Matter of Boddy, 136 Misc 2d 87, 89 [1987]), and at that time McAuliffe was no longer a partner of the firm. Had the partnership agreement used another term, such as "earned," the......

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