In re the Estate of Miller

Brown, J.,

concurs in part and dissents in part, with the following memorandum: While I am in agreement with my colleagues with respect to the other issues presented on this appeal, I do not share their view that the rate at which the trustees herein are to be compensated is to be fixed by reference to the statutory rate of compensation in effect at the time of the testator’s death. I would argue that the Surrogate correctly concluded that the trustees are entitled to the greater fee allowed under the legislation enacted subsequent to the testator’s death and in effect at the time such fees became payable (SCPA 2309). As the majority notes, the general-rule is that commissions to be paid testamentary trustees are determined by the rate in effect at the time of payment (Matter of Bank of New York [Friberg], 199 Misc 593; Matter of Knowles, 101 NYS2d 601; cf. Matter of Barker 230 NY 364). The burden was upon the objectants to establish that the testator intended that the trustees be compensated in some other fashion (Matter of Tuckerman, 60 NYS2d 728). The provisions of section B of article 15 of the will set forth the testator’s desire that the trustees be compensated at a lesser rate than that allowed by law to a sole trustee. However, the will does not similarly indicate that the testator intended to further reduce the amount of the trustees’ compensation by requiring that it be calculated in accordance with the statutory rate in effect at the time of his death. The boilerplate language set forth in section C of article 1 of the will to the effect that “[a]ll laws referred to in this Will shall, unless otherwise indicated, refer to said laws as they exist” at the time of the testator’s death does not establish a contrary intention. Rather, I would agree with Surrogate Radigan’s interpretation that the language used by the testator in providing for the trustees’ compensation “appears to circumscribe the limitations on commissions to those specifically appearing in the commission section of will”. “The intention of the testator to withhold the usual commissions from [a fiduciary] must be in language that can be clearly interpreted, for testamentary provisions will not be construed as depriving the executor of the right to compensation if they may be construed otherwise with equal reason” (Matter of Cohen, 128 Misc 906, 908; see, also, Matter of Langley, 39 Misc 2d 419, 421). In my judgment, absent clear specific language within the section on commissions indicating an intent to further limit the trustees’ compensation by imposing the rate in effect on a particular date, there is “equal reason” (Matter of Cohen, supra) to construe the will to provide that the rate of the commissions *784shall, according to the general rule, be that which is in effect at the time of payment (Matter of Bank of New York [Friberg], supra; Matter of Knowles, supra).