How have the courts dealt with the issue of commissions being paid by executors without a direction of the court?

The first objection concerns the acts of the executors who paid themselves commissions without a direction of the court. It is a deep-rooted legal principle that executors' rights to commissions are inchoate and commissions may not be taken until they are allowed by the court on the settlement of the account (Matter of Worthington, 141 N.Y. 9; Beard v. Beard, 140 N.Y. 260). The query is whether damage to the estate must be shown before some penalty may be imposed upon the fiduciaries for their misconduct or whether, as suggested by the respondent, the mere taking of the commissions under these circumstances compels the court to assess a penalty of not less than an amount equal to the legal interest which the money would have earned from the date it was taken by the executors on account of their prospective commissions until the entry of the decree settling the account when the commissions would become due and payable.

[201 Misc. 892]