
    In the Matter of William Tilden.
    
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1887.)
    
    1. Executors and administrators—Will—Construction of clause in— Commissions.
    A clause in the will of the testator provided that in lieu of all other commissions and compensation to the executors for the performance of their duties under the will, and in addition to them actual and necessary disbursements and expenses, they should receive on all sums to be received, from his partners as capital in the partnership, and on all interest and income on investments in the public debt of the United States, cr in county bonds, and the proceeds of sales of real estate, one per cent of the amount received, and on all personal property sold, or rents, or the collection of debts owing to him, or for the income of other funds or investments, five per cent of the amount received, etc. Meld, that United States bonds were debts and that on sums received by the executors on the sale of such bonds they were, under the above clause, entitled to five per cent.
    2. Same — Nature of commissions — Effect of settlement of account.
    That an executor’s commission was not in the nature of a legacy which is not discharged until paid, but in the nature of compensation for services rendered, and lhat the executors having received a less commission than that allowed by the will were by the settlement, and account precluded, from demanding a greater compensation.
    
      3. Same—What will not complete eight to commissions.
    That on real estate, which was not sold by the executors, but which was the subject of transactions between the heirs, the executors were entitled to no commissions, and that the fact that they joined in a conveyance of their right therein was not sufficient to give them the right to compensation, but it might operate to prevent them from exercising the power of sale given by the will.
    Appeal from parts of a decree of the surrogate entered upon the final accounting of the executors refusing to allow commissions claimed by them.
    
      Joseph H, Choate, for the executors, app’lts; W. 8. MacFarlane, for the resp’ts.
    
      
      See S. C., 3 N. Y. State Rep., 219.
    
   Van Brunt, P. J.

It appears that since the death of the testator in 1869, there have been six successive judicial settlements of the accounts of the executors covering the transactions during six successive periods. The decree on the fifth accounting was entered in June, 1885, and the decree on the sixth accounting was entered on the 6th of December, 1886, and from parts of the latter decree this appeal is taken.

The executors received from the United States government during the period of the fifth accounting $65,000 in payment of government bonds which were owned by the testator at the time of his death, and. were paid by the goverment during said period. Into the fifth accounting that item entered, and the executors charged and were allowed one per cent upon the amount so paid by the government. During the period of the sixth accounting the executors received from the United States government $25,000 under like circumstances, and the executors claimed five per cent as the commission on this $25,000 of United States bonds, under the eighteenth clause of the will, which provides as follows :

Eighteenth. In lieu and exclusion of all other commissions and compensation to my executors for performing T, their duties under this will, and in addition to their actual .and necessary disbursements and expenses, I authorize t|hem to receive from my estate the following commissions, namely: On all sums to be received from my said partners els my capital in said partnership, and on all interest and ifncome on investments in the public debt of the United States, or in county bonds, and on the proceeds of sales of ireal estate, one per cent of the amount received, and on all sums received for personal property sold, or rents, or the collection of debts owing to me, or for the income of other funds or investments, five per cent of the amount received, and on all sums of money invested by them, two per cent of the amount thereof, such commissions to be in full for such services, and the amount to be divided among my executors, from time to time, equitably, in proportion to their respective services.”

During the period covered by the fifth accounting an agreement was "made between the four sons of the testator for a division among themselves of certain real estate left by the testator, the youngest son having become of age. To carry out that agreement deeds of conveyance were made by the executors, and Elmira S. Tilden, widow of the testator, three of the four heirs being grantors, and the other heir being grantee, proper words being used to express the execution by' the executors of the power of sale, the release by the widow of her dower and the partition between the said four heirs. The. executors claimed

commissions upon the valuation placed upon said real estate under the provisions of the said eighteenth clause of the will.

The learned surrogate disallowed the commissions at the rate of five per cent upon the United States bonds, and also the claim for commissions upon the value of the real estate partitioned. 3 N. Y. State Rep., 219.

The provisions of the eighteenth clause of the will referred to entitled the executors for the collection of debts owing to the testator to receive five per cent of the amount received, as compensation. The United States bonds which were held by the testator at the time of his death were part and parcel of the interest-bearing obligations of the United States and formed part of the public debt. In the use of the word' “debts” by the testator in the clause .referred to, no distinction is made in the character of the obligations or debts which might be owing to the testator.

The language is that the executors are to be entitled to a commission of five per cent for the collection of debts owing to the testator. This language necessarily includes each and every obligation for- the payment of money which was held by the testator and which, was subse-, quently collected by the executors. There is no meaning! of the word “debt” which excludes the interest bearing! obligations of the United States or of the state. Thew were part and parcel of the public debt and recognize^ as such by the statutes of the United States in reference thereto. The bonds of the United states were as muclh of a debt as the bonds of any corporation which isl-sued its obligations for the payment of money, or as the obligations of any individual who issued his commerciajl paper payable at a future day. It would seem therefore, that the money collected from the United States upoiji the payment of its obligations came within the provisions of the section referred to and the executors were entitled to commissions thereon at the rate of five per cent.

It does not follow however that the executors can collect their commissions at the rate of five per cent on the proceeds of the bonds included in the fifth accounting in which they have charged and been allowed at the rate of one per cent for collection. The learned surrogate has based his decision in reference to this matter upon the ground that this compensation provided for in the will in excess of that allowed by law is to be looked upon as a legacy, and a legacy is not discharged until paid. .But it does not seem to us that this is a correct view. The provisions in the will were intended to be as compensation for services rendered, to be in no respect a gift, but an authority to charge for their services a certain sum. It is sufficient to say that section 2742 of the Code of Civil Procedure provides that a settlement of the account of an executor is conclusive evidence against all the parties who were duly cited or appeared; that the items allowed to the accounting party for money paid to creditors, legatees and next of kin for necessary expenses and for his services are correct. Therefore the decree entered upon the fifth accounting is conclusive evidence that the allowances therein made to the executors for their services were correct. As long as that decree stands it is difficult to see upon what principle the executors can claim additional compensation for services rendered which are included in that accounting.

The next question relates to the exception taken to the action of the surrogate in refusing commissions upon the real estate partitioned. The sons of the testator were the owners of the fee of the real estate subject to certain powers given to the executors under the will. The executors had no power of division of the real estate. The sole power of division contained in the fourteenth clause related to the division of personal estate and the power of sale therein contained was to sell and convert into monéy or personal iSecurities in order to perform, fulfil and keep any contract, agreement or obligation that the testator might be Tinder at the time of his decease.

< Therefore, as far as the real estate was concerned, the Oxecutors could only sell for the purpose of conversion into ?money or personal securities. This was done. The real -estate was not sold for the purpose of being converted into money or personal securities, nor was it in fact sold at all. The owners of this real estate divided it amongst themselves under an agreement made between themselves, and, in the carrying out of that agreement, the heirs executed the deed and the widow released her dower, the executors joining to convey any title they might have, which was none, and perhaps the only effect of their action being an estoppel upon any subsequent demand on their part to execute the power of sale contained in the will. The fact that, for purposes of book-keeping, they entered the appraised prices of this real estate in their accounts, does not alter the legal aspects of the case. They did not sell for money; they received no money, and their conveyance added no weight to the partition which the owners of the fee made among themselves. This, therefore, being no execution of the power of sale contained in the will, the executors are not entitled to commissions upon the appraised value of the real estate.

The executors were, therefore, entitled to commissions at the rate of five per cent upon the $25,000 bonds, were entitled to no additional commission upon the $65,000 embraced within the previous accounting, and were not entitled to commissions upon the real estate partitioned.

The order of the surrogate should be modified accordingly and, as modified, affirmed without costs of this appeal to either party.

Brady, J., concurs.

Daniels, J.

I concur, except as to the commissions on the United States bonds. They do not seem to be debts due, or owing to the testator, in the sense in which he re ferred to debts owing to him in this will. That he did not understand these bonds to be debts owing to him, and, thérefore, chargeable with commissions at the rate of five per cent, seems also to follow, from the allowance of no more than a one per cent commission for collecting their coupons. The same reason as would reduce the commission to one per cent on the coupons, indicates the intention of the testator to have been that only a like commission should be reserved, and given on the proceeds of the bonds.

In all other respects I agree to the opinion of the presiding justice. _  