In a proceeding for the judicial settlement of the final account of the preliminary executors and the executors of the will of the deceased, for the period from November 1, 1995, through May 28, 1999, the petitioner appeals, as limited by his brief, from so much of an order of the Surrogate’s Court, Kings County, dated February 9, 2004, as denied his motion for summary judgment fixing his compensation as preliminary executor in the sum of $2,563,803.81 and granted that branch of the cross motion of Long Island College Hospital, Polytechnic University, Chemical Heritage Foundation, and the Attorney General which was for summary judgment limiting his compensation for all services as an executor of the decedent’s will, whether performed as a preliminary executor or as an executor, to the sum of $400,000.
The petitioners, were named co-executors in article fourteen of the decedent’s will, which provides: “The commissions payable to my executors shall be according to the New York statute then in effect, but shall in no event exceed the sum of $800,000, which amount shall be divided between my executors, if more than one shall be serving, as they may agree, recognizing the extent of the duties and the relative difficulty of the duties assumed by each or done by each in his respective tenure in office, and the remaining duties and their extent remaining after his tenure, and I direct that each executor agree in writing to that provision as a condition of qualifying.” In the event either or both nominated executors failed to qualify, nonparty Fiduciary Trust Company International of New York was named as an alternate executor. Following the death of the decedent, petitioners offered the will for probate on November 3, 1995. On the same day, they filed a petition for preliminary letters testamentary.
Preliminary letters testamentary were issued on November 20, 1995. The will was admitted to probate on July 8, 1996. The preliminary letters were vacated, and letters testamentary were issued to petitioners. On November 4, 1996, petitioner filed a renunciation of compensation provided under the will pursuant to SCPA 2307 (5). The other petitioner did not renounce the provision limiting his compensation as executor. On November 25, 1996, the executors, petitioners filed a successful ex parte petition for advance payment of commissions pursuant to SCPA 2311, requesting that each executor receive $200,000 on account of their commission. In his supporting affidavit, petitioner purported to preserve his right to statutory commissions under SCPA 2307 by reason of his renunciation. In July 1999, when the executors filed an account of their administration of the estate and petitioned for the settlement of their account, petitioner requested that he be awarded full statutory commissions of $5,323,112, less the $200,000 advance. Wagner only requested that the court award him $400,000 in compensation as provided in the will, of which $200,000 had been paid. The residuary beneficiaries of the estate, several charitable entities, including Long Island College Hospital, Polytechnic University, and the Chemical Heritage Foundation, as well as the Attorney General, statutory representative of charitable beneficiaries (hereinafter collectively the Charities), objected to the accounting, inter alia, on the ground that petitioner was not entitled to statutory commissions. The Charities contended that the will limited compensation to the sum of $800,000, petitioner was required to either accept the compensation cap or not serve at all, and because he petitioned for preliminary letters testamentary in which he swore that he was entitled to letters testamentary immediately upon the probate of the will, he satisfied the condition precedent to qualifying by implicitly accepting the compensation provided in the will, notwithstanding his renunciation.