
    Herman Stein v. Francis Huesmann et al., executors &c.
    A testator gave all his estate to his executors in trust to convert the real -estate into personal and to pay certain specified legacies, and the balance to the complainant as residuary legatee. He also “authorized and requested them to retain, as their compensation, five per cent, of the money realized by them in the settlement of his estate, both real and personal, besides their disbursements and actual expenses.” The executors have had charge of the real estate, and have received the income therefrom since testator’s death. They have paid all the general legacies and claims against the estate and satisfied .the specific legacies. On a bill to restrain them from converting the real estate on the ground that there is no necessity for it, and to compel them to convey it to the complainant — Held, that they were entitled to a commission of five per cent, on its value.
    Bill for relief. On stipulation of counsel. Question of .amount of compensation of executors.
    
      Mr. Randolph Parmly, for complainant.
    
      Mr. William Talcott, for defendants.
   The Chancellor.

Louis Stein, deceased, late of Hoboken, died in May, 1882,. leaving a will and codicil thereto, which were proved before the surrogate of Hudson county, on or about June 1st in that year, by the defendants, the executors named in the will. The complainant, the residuary legatee, filed his bill in this cause against them March 3d, 1884, alleging that they had paid all the debts and general legacies and satisfied the specific legacies, and praying that they be required to pay over to him the balance of moneys in their hands, and convey to him the real estate of which the testator died seized. This they have agreed to do on. certain conditions satisfactory to him, among which is the payment or allowance to them of their lawful compensation as-executors, and the question as to whether they are entitled to commissions on the value of the real estate (appraised for this purpose at $17,900) to be conveyed by them to him, is submitted to this court. By the will, the testator gives and devises to the executors and to their heirs forever, all the real estate he then owned or might thereafter acquire, of whatsoever nature and kind and wheresoever situate, together with all his personal estate of whatever nature, kind or description, in trust, that they should take possession thereof, with the. rents, issues and profits thereof, and convert such real and personal estate into money, except as thereinafter directed (referring .to certain specific legacies and directions for the disposition without sale of certain of his personal effects), as soon as-possible, in their judgment, without incurring unreasonable loss, and then upon further trust to apply the money so realized as thereinafter directed, first paying his debts and funeral expenses. He then gives various pecuniary legacies to individuals and charitable associations mainly, and gives some specific legacies, and directs that certain disposition be made of some other of his personal effects, and then gives the remainder of his estate to the complainant. After appointing the defendants his executors, he directs that no security be required of them, and he authorizes and requests them to retain as their compensation five per centum of the money realized by them in the settlement of his estate, both real and personal, besides their disbursements and actual expenses in and about the execution of the will. They have not converted the real estate in question, although they have had charge of it, under the devise to them, since June, 1882. The complainant, in his bill, prays that they may be restrained from converting it — conversion not being necessary for any purpose under the will — and may be required to convey it to him. As before stated, they are about to transfer it to him accordingly.

They are entitled to a commission of five per cent, on the appraised value of that property. The bill states, it may be remarked, that the complainant has offered to pay it to them. Where personal property is transferred by an executor to a legatee in the form in which he receives it from the testator, he is entitled to commissions upon its value. Pomeroy v. Mills, 10 Stew. Eq. 578. And it has been held that the principle applies to real property also. Matter of De Peyster, 4 Sandf. Ch. 511; Wagstaff v. Lowerre, 23 Barb. 209. See, also, Redfield’s Practice 384.

In the case under consideration the testator devises all his estate .to the executors and directs an out-and-out conversion of it. ITe therefore, of course, must be presumed to have contemplated such actual conversion when he made the provision for their compensation, which is in effect a legacy. He not only authorizes but requests them to retain for their compensation five per cent, of the money realized in the settlement of his estate (and to prevent misunderstanding he adds), both real and personal. What he meant was to give them, for their pay, five per cent, on the value of all his property, the value to he fixed by what it should bring or realize on actual conversion. They have had charge of the property in question, under the devise to them, for two years. Should they execute the power of sale under the will, there could be no question that they would be entitled to the percentage. The complainant, for his own advantage, seeks to restrain them from converting the property and to i compel them to convey it to him, and they are willing to do so. I Under the circumstances, they are entitled to the percentage on-^the appraised value of the property.  