Will of McDonald

• Citation: 116 Misc.2d 834,456 N.Y.S.2d 657
• Parties: WILL OF Marjorie B. McDONALD, Deceased. Surrogate's Court, Nassau County
• Decision Date: 03 December 1982
• Court: New York Surrogate Court

Page 657

456 N.Y.S.2d 657

116 Misc.2d 834

WILL OF Marjorie B. McDONALD, Deceased.

Surrogate's Court, Nassau County.

Dec. 3, 1982.

Dewey, Ballantine, Bushby, Palmer & Wood, New York City, for petitioners.

C. RAYMOND RADIGAN, Surrogate.

This application by the co-executor of the estate of Marjorie B. McDonald, for advance receiving commissions, without bond, raises novel questions concerning the application of section 2311 of the Surrogate's Court Procedure Act.

The decedent Marjorie B. McDonald died on April 24, 1982. Her will dated December 9, 1969 together with two codicils dated June 15, 1975 and May 3, 1979 were duly admitted to probate.

Article "ELEVEN" of the will provides in part:

"C. I authorize my Executor to make payments from time to time during the administration of my estate on account of executor's commissions and counsel fees (without requiring any bond) in advance of the settlement of my Executor's final account * * * ".

Article "SIXTEEN" provides in part:

"A. No bond, surety or other security shall be required of any Executor, Trustee Preliminary Executor or Administrator c.t.a. acting hereunder, any law of any state or jurisdiction to the contrary notwithstanding nor shall any bond be required in connection with the prepayment of any commissions to any Executor or the prepayment of any legal fees."

The question presented is whether the provision in the decedent's will relieves the fiduciary of the requirement of filing a bond in the amount of the payment.

SCPA 2311(5) provides:

"The order or decree authorizing payment on account shall require the fiduciary to file a bond in the amount of the payment securing its return if and to the extent that the payment is disallowed, except that no such bond shall be required where the fiduciary has already filed a bond pursuant to law or is a corporate fiduciary or where all persons whose rights or interests would be affected by the payment are persons under no legal disability and by acknowledged instrument consent to waive a bond."

Section 2311 is derived from section 285-d of the Surrogate's Court Act. Section 285-d was enacted to permit an ex-parte application for the payment of commissions on account, in recognition of the fact that the procedure under section 285-c of the Surrogate's Court Act (now SCPA 2310) was cumbersome in that it required the issuance of citation to all persons whose rights or interests would be affected and often required the appointment of a guardian ad litem (see Report No. 7.1B Legis Doc [1963] No. 19).

Section 285-d was therefore an expansion of the pre-existing 285-c (originally 285-b) which was enacted in 1943. The 1943 law provided that: " * * * In all cases where a payment on account of commissions is directed by the surrogate such payment on account shall not exceed the receiving commissions due the fiduciary and the decree authorizing the payment on account shall require the fiduciary to file a bond securing the return of such payment on account of commissions if the commissions ultimately allowed by a decree on accounting shall be less than the sum so authorized to be paid on account" ( § 285-b, added L.1943, c. 500 [emphasis supplied] ).

The commentary following the statute states: " * * * The amendment provides a method under which the fiduciary may obtain a partial payment of the commissions due him in any year and at the same time contains safeguards against the award of commissions to an unfaithful fiduciary or to overpayment of commissions".

An examination of the statutes which were the precursors to SCPA 2311 indicates that the Legislature has consistently required the fiduciary to furnish a bond to secure any loss to the estate as a result of the payment of commissions on account. The statute specifically limits exceptions to the situations where (1) the fiduciary has already filed a bond...