IN RE: the ESTATE OF Helen BUTTA

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Surrogate's Court, Bronx County, New York.

IN RE: the ESTATE OF Helen BUTTA, Deceased.

Decided: September 25, 2000

Ronald A. Rappo, Pelham, for Rosario Butta, executor.

The question of first impression presented in this ex parte application for an advance payment of commissions pursuant to SCPA 2311 is whether the executor, without the consent to the payment by all persons whose interests would be affected, is entitled to an advance payment equal to 5% of the gross rentals he has collected (SCPA 2307[6] ) in addition to an advance payment equal to a statutory receiving commission under SCPA 2307(1).   The court holds that the petitioner is limited under SCPA 2311(3) to an advance payment in the sum of $57,850.45, an amount equal to statutory receiving commissions under SCPA 2307(1), and that his request for an additional advance payment of $12,346.10, an amount equal to 5% of the gross rentals that he collected, is denied.

 An executor may lawfully pay commissions to himself in the following ways:  1) by applying to the court for an advance payment either on notice pursuant to SCPA 2310 or ex parte pursuant to SCPA 2311, 2) by obtaining informed receipts and releases from all of the interested parties, and 3) by the judicial settlement of the executor's account (see Matter of Crippen, 32 Misc.2d 1019, 224 N.Y.S.2d 116).

Here, the executor has opted to make an application pursuant to SCPA 2311.  SCPA 2311(3) provides:

“In all cases where a payment on account of commissions is directed by the court the payment on account shall not exceed the receiving commissions due the fiduciary, except that the court may award a greater sum where all persons whose rights or interests are affected by the payment are persons under no legal disability and by acknowledged instrument consent thereto.”

 The limitation on advance payment of commissions in SCPA 2311(3) to an amount not to exceed “receiving commissions” must be interpreted as referring to SCPA 2307(1) which provides for commissions “for receiving and paying out all sums of money” with such commissions to be computed “separately for receiving and paying out sums of money, at one-half the statutory rates for receiving and one-half the statutory rates for paying out sums of money”.   That the fiduciary's right under SCPA 2307(6) to compensation for managing real property equal to 5% of the gross rentals collected may not be interpreted to fall within the definition of “receiving commissions” under either SCPA 2307(1) or SCPA 2311(3) is evident from the express language in 2307(6) that the commissions allowed thereunder are “in addition to the commissions” otherwise allowed under SCPA 2307.

Accordingly, an order has been entered allowing the petitioner to pay himself an advance payment of commissions in the sum of $57,850.45 upon his filing a bond to secure the return of said advance payment if and to the extent the payment is ultimately disallowed (SCPA 2311[5] ).

LEE L. HOLZMAN, J.