EXECUTOR’S COMMISSION.

Wairarapa Age, 1 April 1930, Page 6

EXECUTOR’S COMMISSION.

SUPREME COURT JUDGMENT. The reserved judgment of Mr. Justice Ostler was announced at the Supremo Court, Masterton, yesterday morning, in the matter of John Cavanagh (deceased) and an application for executor's commission made by John Welland. The ease presented some novel features. The deceased died on the 19th January, 1911, and JJohn Wolland and Edward Joseph Smith together acted as executors until the death of the latter in 1926. At tho hearing before the Registrar it was claimed by Mr. Smith, when opposing the grant, that any sum granted should be allotted between John Wolland and the widow of the deceased executor, as the latter had taken a prominent part in the duties. The report recommended that £225 be paid to the original executors, but if the Court hold in deciding the legal issue that the surviving executor only could claim, that the sum of £ll2 10s be paid to him for his pains and trouble. The Registrar quoted as authority for his recommendation in re Brown’s will (1875) IV.L.R. 41, where it was decided that where one of several executors applies for commission for his pains and trouble, the Court will narrow the allowance if it is shown that a deceased executor has taken part in the labour for which compensation is sought. His Honour sets out that the above ruling in re Brown seemed entirely reasonable and he was prepared to follow it. “In this case tho Registrar has found that the deceased executor has for a period of 15 years out of the .19 years during which the trust has been in existence mainly controlled the management of the estate,’’ says His Honour. “Affidavits have been filed in an endeavour to contradict this finding of fact, but I am not satisfied that they do so. After reading the whole of the papers I am prepared to agree with the Registrar in this respect.” His Honour further held that where one of two executors has died before the accounts are passed and the surviving executors thereafter applies for commission on the passing of accounts only one sum can be allowed and the Court has no power to allow a portion of that sum to the representatives of the deceased executor. In view of the fact that John Wolland would have to carry on the trust in tjie future for an indefinite time, His Honour decided that the sum of £175 would be sufficient allowance to cover past and future trouble. At the hearing Mr. T. M. Page appeared for the surviving executor, Mr. H. C. Robinson for the deceased executor, and Mr. G. H. Smith for the residuary legatees.