Matter of Hillman

In Matter of Hillman, 200 Misc. 646, revd 280 App Div 310, 113 N.Y.S.2d 409 affd 305 NY 577, leave denied 305 N.Y. 797, the testator appointed Guaranty Trust Company and his nephew as executors of his will. The will provided that each would receive only 1% of the gross value of the estate as compensation for their services as executors and that qualification as executors would be deemed conclusive evidence of acceptance of this compensation. The nephew predeceased the testator and Guaranty Trust Company was appointed executor of the will. Guaranty Trust Company had agreed to the compensation prior to the testator's death. Objections were filed to the probate of the will and Guaranty Trust Company was appointed temporary administrator. The objections were soon withdrawn and full letters issued. Nonetheless, Guaranty Trust Company requested a full receiving commission on the gross principal assets as temporary administrator. Although no party objected, Surrogate Frankenthaler relied on the total compensation provisions of SCA 285 to hold that the executor was limited by the testamentary provision for all capacities. "The compensation allowed for the administration of this estate by the Guaranty Trust Company as executor is that specified in the will. Hence, it is not under the statute entitled to a "total compensation" in excess of that sum. The statutory provision was intended to prevent a person who performed the same functions in two capacities from collecting double commissions therefor. There is no indication that a different result was intended should the executor's commissions be less than the statutory rate. On the contrary, the broad and inclusive language of subdivision 8 of section 285 would seem to admit of no exception." (id. at 648). On appeal, the Appellate Division reversed. Although the court agreed that Guaranty Trust Company was bound by the will's provision for compensation, the court adopted the reasoning of Surrogates Foley and Wingate to hold that it would receive full statutory commissions as temporary receiver (280 App Div 310, 313-314, 113 N.Y.S.2d 409). On appeal, the Court of Appeals, in a four to three decision, affirmed (Matter of Hillman, 305 N.Y. 577, 111 N.E.2d 446) and denied a motion to reargue (Matter of Hillman, 305 N.Y. 797, 113 N.E.2d 305).