Cyprus Supreme Court allows executor remuneration under Administration of Estates Law despite will silence.

[*355] 1972 May.31

DEMETRIADES, AG. P.D.C. PAPADOPCUELOS, AG. D.J.)

IN THE DISTRICT COURT OF NICOSIA

In the matter of Polyxeni S. Ektoridou,

deceased,

(Probate Application No.397/68).

Executors and Administrators - Remuneration of executor - An executor is entitled to receive remuneration for the services he renders to the estate of a deceased person and his position is the same as that of an administrator – Section 42 of the Administration of Estates Law, Cap. 189

- Amount of remuneration - Basis of determination.

K. Talarides, for the Applicant.

N. Pelides, for the Respondent.

RULING

The ruling of the Court was delivered by: -

DEMETRIADES, AG. P.P.C.: - This is an application [*356] by the executor of the will of Polyxeni Ektoridou, deceased late of Pallouriotissa, by which he prays that his remuneration for carrying out his duties be fixed by the Court.

All the heirs, except the one who has opposed this application, have filed a document by which they declare that they consent; to the payment to the applicant of remuneration. The respondent in these proceedings, however, opposed the executor1 s application on the ground that as no provision was made in the will of the deceased for the payment to him of any remuneration, he is not entitled to receive anything.

Before proceeding to deal with the aspect of the opposition, we consider it proper to put in a nutshell the facts that-preceded the application.

The deceased by her will named the applicant as her executor. She died on the 8th October, 1968 and on the 21st October, 1968 he applied to the Court for a grant of probate. The respondent in these proceedings is the daughter of the deceased and when the applicant applied for probate she entered a caveat. As she, however, failed to take an action for administration within three months from the filing of her caveat, as it is provided by Rule 24(5) of the Administration of Estates Rules, 1954 this lapsed and a grant was on the 25th April, 1969 made, appointing the applicant as the sole executor of the deceased” will.

After his appointment, the executor proceeded to carry out his duties, and as it appears from the file as well as from the account submitted by him, the work he carried out involved considerable work. It took him, apparently in view [*357] of the nature of the assets of the estate approximately three years to realise and get in the assets, settle and pay the estate duty, pay the debts owed by and to the deceased, and generally for carrying out his duties as executor.

The respondent based her argument solely on the established English principle that personal representatives are not entitled to any allowance for services they render in execution of their duties in relation to an English Estate and her learned counsel referred us to Snell's Principles on Equity, 23rd Edition, p. 175 and William on Executors and Administrators, 14th Edition, p. 1097.

Learned counsel for the applicant, on the other hand, argued that the English principles do not and cannot apply in Cyprus, He further argued that in Cyprus there is no difference in principle, between the position of an administrator and an executor. Counsel for the applicant based his argument on common sense and logic, on Article 2027 of the Greek Civil Code and section 70 of the Contract Law, Cap.149

It is true that neither in the Administration of Estates Law., Cap. 189, nor in the Administration of Estates Rules, 1954; there is an express provision allowing or prohibiting the receipt of remuneration by an executor who has proved the will.

In the absence of any such express provision in our law, the question that arises is whether the English principles apply or whether the provisions of section 42 of our law take the case out of these principles. [*358]

Section 42 of Cap. 189 provides

’'After payment of the funeral expenses and the expenses incidental to the acceptance and discharge of the executorship or administratorship and the remuneration of the executor or administrator, the just debts of the deceased shall be liquidated by the executor or administrator in the following order of priority that is to say ...."

We must note here that the position of an administrator in England does not appear to be different from that of an executor and all the authorities speak that personal representatives are not entitled to receive any allowance for services they render in execution of their duties.

When one reads section 14 of Cap. 189, he wonders what was the intention of the legislator in mentioning the payment of remuneration to an executor or administrator and why he provided that such remuneration should be paid before the just debts of the deceased. Can we, therefore, assume that there was an intention to follow the English principles regarding this matter and an executor in Cyprus only to be entitled to receive remuneration if the will expressly so provided, or that the provision for the payment of the remuneration of the executor or administrator prior to the payment of the debts of the deceased was made in order to show that the position here was different from that in England and that personal representatives are entitled to receive remuneration for services rendered in the execution of their duties.

We are of the view that had the legislator intended the executor to receive remuneration only if it was so provided [*359] in the will, he would undoubtedly have made specific provision and not use words that bear a more general and liberal interpretation,

For these reasons we find that an executor (in fact all the personal representatives) in Cyprus is entitled to receive remuneration for the services he renders to the estate of a deceased person and that his position is the same as that of an administrator.

Having reached this conclusion, the next question that arises for determination is what is the amount to which the applicant is entitled.

In Tavernaris v. The Estate of Polyvios Theodossiades reported in (1970)7J. S.C. p.643, the Supreme Court fixed the amount of the remuneration of the administrator in that case on a percentage basis, but warned that in the absence of agreement between the parties the percentages should be found in the circumstances of each particular case. (Per Vassiliades, P. p. 646, 15-20).

Having gone through the account filed by the applicant and the work he carried out in execution of his duties, we would be inclined to allow him 4 per cent for the first £5,000.of the amount realised 2 per cent for the next £10,000.- and 1 per cent on any amount realised above the £15,000.-. We would also allow him 1 per cent on the amounts he distributed to the heirs.

As we have not before us the final accounts of the assets and liabilities of the estate, we direct the Probate Registrar to make the necessary calculations and return the file to us to approve the remuneration of the applicant. [*360]

As regards the costs of this application, we feel that it will not be fair to order out of the estate, because by so doing we shall be calling upon the other heirs to pay part of the costs of this litigation.

For this reason we order that the costs of these proceedings be paid by the respondent.

Costs to be assessed by the Registrar.

Application granted.

Order for costs as above.