Matter of Will of Duell

Trusts and Estates

New York Law Journal

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Surrogate Kristin Booth Glen

In this contested proceeding for the settlement of co-executor Andrew Duell's first intermediate account, numerous objections were raised by decedent's wife, Irene, and other children, Thea and Benjamin. Objections included the amount of commissions Andrew was entitled to, including rental commissions, under Surrogate's Court Procedure Act §2307(6). Objectants relied on findings at a hearing for Andrew's removal as co-trustee to support their position that he was not entitled to commissions as executor. The court noted the issue was whether Andrew's conduct, previously found to be rude and spiteful, constituted grounds for denying commissions. It stated, however, objectants did not allege harm to the estate resulting from Andrew's conduct, noting it "grew in value exponentially" over the 21 year period of the account. Thus, it concluded the acts described as "deceitful and malicious" did not warrant a forfeiture of statutory commissions. Yet, the court found objectants were correct that Andrew was not entitled to additional compensation for rental commissions under §2308(6), permitting an executor five percent of gross rents, in addition to commissions under §2307(1), but would be compensated for the growth in value of the estate.

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