Opinion
December 15, 1933.
Hinman, Howard Kattell [ Roger P. Clark of counsel], for the objectors.
Frank M. Hays, for the executors.
The sole question to be decided, by the objections interposed in this accounting proceeding, is as to the right, under the provisions of section 285 of the Surrogate's Court Act, of the executors of the last will and testament of the above-named decedent to receive commissions upon the gross proceeds of the sale by them, as the executors of said estate, of real property located on Jay street, in the city of Binghamton, N.Y., and owned by said decedent at the time of her death.
The following facts have been stipulated by the respective counsel: Testatrix at the time of her death lived in and owned the premises hereinbefore mentioned, subject to a mortgage thereon in the principal sum of $3,600, with accrued interest from April 3, 1918, due thereon. This property was sold by the executors of the estate of said decedent, under a power conferred on them in said will, for the principal sum of $7,000, which was received by them on January 6, 1930.
The will, in the case at bar, gives to the executors thereof a mere power of sale, to be exercised in their discretion, with no imperative or mandatory directions for the sale thereof; nor does it provide that said real property be sold free and clear from the lien of the mortgage and payment of the principal of said mortgage be made to the mortgagee.
The court has carefully considered the briefs filed herein by the respective counsel, and has made a thorough examination in his own behalf for authorities concerning the matter raised by the objections filed herein, and is of the opinion that this question has been decided by the Court of Appeals in Farmers' Loan Trust Co. v. Turner ( 242 N.Y. 240); also Matter of Mercantile Trust Co. (210 id. 83); also Baucus v. Stover (24 Hun, 109, at p. 115, opinion of LEARNED, P.J., concurred in by BOARDMAN, J.).
I hold and determine that the executors of the last will and testament of Susie C. Farrington, deceased, are not entitled to commissions on the money received by them representing the mortgage lien, with accrued interest due thereon, on the property hereinbefore mentioned, at the time of the sale of said real property, but that they are only entitled to commissions upon the money received by them as such executors, representing the equity of redemption.
The decree to be entered herein making distribution of said estate shall provide in accordance herewith.