
    SURROGATE’S COURT.
    In the Matter of the final judicial settlement of the Estate of William R. Welling, deceased.
    
      Executors—Commissions—What allowed when there are three executors— How apportioned — Code of Civil Procedure, section 2736.
    Commissions, at the rates fixed by the statute, are allowed only by an-order of the court on the settlement of the executor’s account, but the right to such commissions cannot be withheld by the court except ini certain cases, as where specific compensation is provided.
    Where, on January 14, 1884, letters testamentary were issued to three executors, and on July 15, 1884, one of such executors died,, after having acted up to that time, the estate amounting to inore than. $100,000:
    
      Held, that on the final accounting, three full commissions should be allowed and apportioned among them, according to the services rendered by each executor.
    
      Orange county,
    February, 1885.
    On January 14, 1884, letters testamentary were issued to-Thomas Welling, Sarah Welling and John H. Butts. Butts died July 15, 1884, after having acted up to that time.
    On the accounting, it was claimed that three full commissions should be allowed and apportioned, the manner of the apportionment being agreed upon between the two survivors and the executrix of the deceased. The special guardian objected to more than two full commissions being allowed the survivors, and such an amount to the deceased as would be proportionate to the services rendered by him. This estate amounted to nearly $400,000.
    George W. McEI/roy, for executor Thomas Welling.
    
      H. W. Bookstaver, for executrix Sarah Welling.
    
      L. V. Booraem, for executrix of deceased executor John H. Butts.
    
      M. N. Fane, special guardian of minors’ residuary legatees.
   The Subrogate.—

Commissions at the rate fixed by the statute are allowed only by an order of the court on the settlement of the executor’s account (Redfield on Surrogates [3d ed.], 725, and cases there cited). The fight to such commissions, however, cannot be withheld by the court except in certain cases, as where specific compensation is provided (Id., 720, and cases there cited). The doubt here is occasioned by the death of one of the executors before settlement, and by the fact that the section (sec. 2736) allows each executor the full compensation allowed by law to a sole executor, thereby, possibly, raising the implication that each executor must, at least nominally, participate in the administration until the time of settlement of the estate to entitle him to his full commissions, so that they may be added to the commissions of the others and apportioned among all, as required by the last clause of the section.

Section 2736. Where the value of the personal estate of the decedent amounts to one hundred thousand dollars or more' over all his debts, each executor or administrator is entitled to the full compensation allowed by law to a sole executor or administrator unless there are more than three, in which case the compensation to which three would be entitled shall be apportioned among them according to the services rendered by them respectively; and a like apportionment shall be made in all cases where there shall be more than one executor or administrator.

The provisions of this section only require, where there are three or more executors, to entitle them to three full commissions : 1. A personal estate exceeding $100,000; 2. Three or more executors, ISTo reference is made to the extent of the services required to be rendered by each to become entitled to a full commission, except that which is implied by the provision for apportionment; and this provision for apportionment ds an implied recognition that one may render less than a fair proportion of the services and yet be entitled to full commissions for the purpose of apportionment. The provision giving full commissions to each is limited and qualified by the latter clause, directing the apportionment only, however, as to the manner and not as to the amount, for the wording is that where there are more than three “ the compensation to which three would be entitled shall be apportioned,” &c., and “ a like apportionment shall be made in all cases where there shall be more than one; ” that is, a like apportionment shall be made, in the case of two, of the compensation to which two would be entitled, and, in the case of three, of the compensation to which three would be entitled.

An apportionment of the compensation to which all would be entitled, “ according to the services rendered,” implies a taking from one and giving to another, and therefore one will receive more than a full commission and another less than a full commission, otherwise there is no need of an apportionment among them. If, then, a full commission is allowed for each executor to be apportioned, if all are living at the settlement, although one has rendered less than a fair proportionate share of the services, was it the intention of the legislature that it should be otherwise where an executor dies before the settlement ? It is my opinion that it was not; for if the foregoing reasoning be correct, then the legislature intended by the expression “ the compensation to which three would be entitled ” to speak of it as one sum or amount, that amount to be ascertained by multiplying the commissions of a sole executor by the number of executors up to three; and in apportioning that amount, when ascertained, the same law should apply as would be the case in an estate of less than $100,000 where there were several executors and one had died before settlement, i. e., according to the services rendered by each.

This seems to me to be the only sensible conclusion, for otherwise a different rule would prevail in cases where no real difference existed; as where one executor, after having taken an active part in the administration of the estate, say for three months, voluntarily took no further part in such administration until the settlement, or was unable to do so by "reason of death.

Although, as I have said, this seems to he the only sensible conclusion; still I have been at some pains to state the reasoning which led me to it, for the reason that several lawyers of large experience to whom I have mentioned the subject were quite decidedly of the contrary opinion. It seemed to them anomalous that full commissions should be allowed in the case of an executor who had died before settlement, a part of which was to be apportioned among the survivors.

It is evident that the legislature, for some reason, intended to allow more commissions where the estate exceeds $100,000, and it is also evident that we cannot adopt the amount of the commissions allowed as a valuation of- the services rendered, for the reason that twice or three times as much commissions are allowed for administering estates of $100,000 and upwards, depending only upon the number of executors acting; or, in other words, an executor is allowed just as much for rendering one-third of the services, when he is one of three executors, as he would receive for rendering all the services, if he were the sole executor, notwithstanding the fact that a sole executor is required to administer the estate just as fully as would be required of three executors; on the other hand, if he had a co-executor, who did very little of the work, he would be entitled to nearly two whole commissions. So we have all sorts of anomalies under this law, and we need not be surprised at finding another.

However, the testator is presumed to know the law, and he has it in his power to determine the amount of expense to which his estate shall be subjected, by way of commissions, by selecting one, two, three or more executors. He may even provide that" they shall not be allowed any commissions (Secor agt. Sentis, 5 Redf., 570; Matter of Gerard, 1 Dem., 244), or he may fix the sum to be .received by the executors in lieu of commissions (Seo. 2737).

Here three full commissions allowed by law to a sole executor should be apportioned, and, as those entitled to such commissions have agreed as to the manner of the apportionment, the decree will be made accordingly.  