
    Frederick L. Randall v. George R. Gray et al.
    [Decided May 15th, 1912.]
    1. That the beneficiaries of an estate have instituted litigation against him. and have made unfair and unjust charges, does not entitle an administrator to commissions, where he lias acted for several years under an agreement that commissions should not be allowed; the agreement being revocable only upon notice.
    2. Even if two beneficiaries of an estate agreed to aid the administrator in managing the estate in consideration of his promise to charge no commissions, and failed to render assistance, the administrator cannot recover commissions without showing that he asked for the assistance and was refused, and that notice thereof was given to the parties interested.
    On bill for account. In re matter of commission.
    
      Mr. Glarence SacTcett, for the complainant.
    
      Mr. Aloysius MacMahon, for the defendant Hopping.
   Emery, V. C.

On further consideration of the evidence bearing upon the matter of the allowance of commissions to Mr. Hopping as substituted administrator of Mr. Gray, I reach the conclusion that commissions should not be allowed. The evidence -establishes that Mr. Hopping was appointed in Mr. Gray’s place as the re- suit of a conference of the members of the testator’s family interested, at which it was understood that by this appointment the estate would be relieved from the expense of commissions. The appointment of Mr. Hopping was consented to and accepted on this understanding, and the accountant is bound by it until revoked upon notice. Such notice was not given, nor such revocation attempted until after the commencement of proceedings for accounting, and the right to charge commissions is now placed by Mr. Hopping himself mainly upon the ground that the complainants have instituted the litigation and have made unfair and unjust charges against him. Such action might justify refusal to act longer without compensation,, but would not give the right to ignore the understanding which had been acted on for years in the management of the estate.

At the time of the appointment it seems to have been expected and perhaps agreed that Mr. Yearance, a son-in-law, and Frederick Randall, a son of the testator, would aid the administrator in the management of the estate.

The present claim of the administrator, that the aid and assistance to be given by these persons were in the nature of conditions made on the appointment, and that'by reason of their failure to assist him, he has the right to charge commissions, is not satisfactorily shown on the evidence. And if this were proved, such conditions could not be made effective to give the right to the commissions unless the administrator makes further proof—■ first, that the administrator, who had as against them the legal right to the management, asked for their assistance and was refused, and second, that the parties interested, and who had acquiesced in the appointment, relying on the understanding that no commissions were to be charged, were notified that the conditions were not complied with and that the administrator would thereafter ask for commissions. Mr. Yearance lived for six years after the appointment and gave some aid in the management, as did also Frederick Randall. In the absence of any intimation that the original understanding as to commissions was no longer considered binding, the parties interested in the estate were entitled to hold the administrator to its observance.

Commissions, therefore, cannot be allowed, but the administrator cannot be obliged against his will to continue to act without •compensation, and may apply for his discharge on settlement of his account.  