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Matter of Estate of Charles F. Seabrook

Decided: February 25, 1974.

IN THE MATTER OF THE ESTATE OF CHARLES F. SEABROOK, DECEASED. THE BANK OF NEW JERSEY AND LEO P. DORSEY, TWO OF THE EXECUTORS UNDER THE WILL OF CHARLES F. SEABROOK, APPELLANTS,
v.
WESTMINSTER CHOIR COLLEGE, BOARD OF EDUCATION OF UPPER DEERFIELD, PRINCETON THEOLOGICAL SEMINARY AND THE DEERFIELD PRESBYTERIAN CHURCH, CROSS-APPELLANTS-RESPONDENTS, AND BELFORD L. SEABROOK, JOHN W. SEABROOK, ET ALS., CLARENCE B. MCCORMICK, ROBERT A. SIDUR AND DONALD G. MCALLISTER, REMAINING EXECUTORS UNDER THE WILL OF CHARLES F. SEABROOK, ET ALS., RESPONDENTS



Conford, Handler and Meanor. The opinion of the court was delivered by Conford, P.J.A.D.

Conford

These are appeals from that part of an order entered in the Chancery Division fixing executors' commissions on corpus and fees for counsel to the executors in the administration of the estate of Charles F. Seabrook, who died October 20, 1964. Certain of the appellants originally appealed also the denial by the court of a demand by income beneficiaries that earnings of a corporation wholly owned by the testator, C.F. Seabrook Company, be allocated to income of the estate rather than corpus. This issue has been settled pending the appeal. The remaining issues are:

(a) whether the commissions awarded to executors are excessive;

(b) whether such commissions are inadequate, and

(c) whether the counsel fees awarded to the attorneys of the executors are excessive.

The background of the matter may be stated as follows. The testator's principal asset at death consisted of all the shares of stock of the corporation named above ("company") and several subsidiaries thereof. The company owned 12,000 acres of land in Cumberland County, most of which was farmland under long-term lease for farming purposes to Seaman Brothers. The subsidiary companies operated housing consisting of several hundred units and a large horticultural nursery, both fairly profitable operations and well run under the salaried ($21,000 per annum) management of Donald G. McAllister, who is also one of the six executors of the estate. The other executors are Bank of New Jersey (formerly Camden Trust Company); Samuel P. Orlando (until his decease in the Spring of 1972), who was the company's attorney at $5,000 per annum and served also as counsel to the estate; Clarence B. McCormick, a banker, who also became president of the company after the testator's death at a salary of $9,000 per annum; Leo P. Dorsey, a New York

lawyer, and Robert A. Sidur, son-in-law of Mr. Seabrook, who received a salary of $6,000 as head of the housing subsidiary but whose principal occupation was elsewhere. These men also served during the administration as the board of directors of the company.

There was a contest over probate of the will by next-of-kin claiming fraud and undue influence by Mr. Orlando and Mr. Dorsey. After 2 1/2 years of litigation the matter was settled by an increase of the distributive share of the widow and reduction of those of the several charitable beneficiaries.

The executors qualified as such about April 1967, after the will contest, and have continued as executors until the present time, but the active administration largely subsided in November 1971 when the corporate shares (inclusive of the subsidiary corporations) were sold in bulk for $9,000,000 net (free of brokerage), and the proceeds were converted into United States Treasury bills.

The executors sought corpus commissions of $922,455.38, or the maximum statutory rate of 5% for one executor and 1% for each of the five additional executors on corpus receipts of $9,224,553.83. N.J.S.A. 3A:10-2. The trial court allowed the mandatory 5% of the first $100,000 and 2 1/2% of the remainder, and an additional 2% by reason of there being more than one fiduciary, or a total of $417,604.93.

The representatives of Mr. Orlando sought a counsel fee for his law firm of $300,000 and were allowed by the trial court $200,000.

I

N.J.S.A. 3A:10-1 provides that allowance of commissions on corpus in excess of $100,000 to testamentary fiduciaries "shall be made with reference to their actual pains, trouble and risk in settling the estate rather than in respect to the quantum of the estate." N.J.S.A. 3A:10-2 sets forth a maximum percentage of allowance on corpus over $100,000 coming into the fiduciary's hands: i.e., 5%, and,

in addition, regardless of the amount of corpus, a maximum rate of 1% additional for each fiduciary in excess of one.

In In re Bristle, 138 N.J. Eq. 476 (E. & A. 1946), it was said in relation to the same statutory provision:

Obviously, the maximum commission was intended to be applied to administrations involving the maximum amount of trouble and risk. [at 477]

In that case the appellate court reduced an award of corpus commissions from 3 1/2% to 2 1/2%, pointing out, among other things, that the estate had "for its ...


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