Opinion
February, 1894.
George M. Barry, for the temporary administratrix.
Redfield Redfield, for legatee.
In Matter of the Estate of Maltby G. Lane, Surr. Dec. 1891, p. 388, the question was whether the temporary administrator was entitled to receive compensation measured by the value of his services, which he claimed to be in excess of the commissions fixed by statute for the services of an executor or administrator. It was held that the statutory commissions furnished the standard to be applied in measuring his remuneration, but no determination was made that the court in applying the standard should confine it to cases in which an executor or administrator could be awarded commissions. The fact that an executor is not entitled to commissions on property specifically bequeathed is no reason for depriving a temporary administrator of commissions thereon. Is is the duty of the executor to deliver the property to the legatee pursuant to the direction of the testator, and in such case it is considered that there cannot be, actually or constructively, such a receiving and paying out within the meaning of the statute or such a rendition of services as would entitle him to commissions. The object of the law in providing for the appointment of a temporary administrator is to insure the safety and preservation of the property, and ordinarily its ultimate delivery in kind by the administrator upon the termination of his office, and the compensation which is awarded to him is given for these services. Green v. Sanders, 18 Hun, 308; Est. Malby G. Lane, Surr. Dec. 1891, p. 388; Est. of Stanfield, Surr. Dec. 1892, p. 237. The circumstance, therefore, that some of the bequests in this case are specific does not deprive the administrator of commissions on the same.
Decreed accordingly.