
    In the Matter of the Final Judicial Settlement of the Accounts of Frances Baker, as Administratrix, etc., of Elizabeth Wilbur, Deceased, Appellant; Mary Wilbur Irwin and Others, Respondents.
    
      Administratrix — when commisdom should not he withheld.
    
    An administratrix should not be denied her statutory commissions because, through a mistake of judgment, she neglected to sue upon a note belonging to the decedent’s estate, which had passed from the possession of the decedent in her lifetime into the hands of the maker of the note, especially where it appears that the administratrix has been charged with the principal and interest of the note, and that the estate has lost nothing by reason of the administratrix’s failure to sue upon the note. ' •
    Appeal by Frances Baker, as administratrix, etc., of Elizabeth Wilbur, deceased, from a decree of the Surrogate’s Court of Washington county, entered in said Surrogate’s Court on the 12th day of July, 1901, judicially settling her accounts as such administratrix.
    
      G. H. Sturges, for the appellant.
    
      James G. Rogers, for the respondents.
   Per Curiam :

We think the learned surrogate erred in adjudging that the administratrix was not entitled to the commissions allowed by law. The record does not disclose such gross negligence or unfaithfulness in the discharge of duties as to warrant punishment of this character. The negligence charged relates to her failure to obtain possession of a note which had passed from, the possession of the deceased in her lifetime into the hands of the maker of. the note. This question of how to proceed under-the circumstances, or whether to involve the estate in litigation over the matter at all was not: so clear as to make it gross, culpable negligence not to bring an actibn. The surrogate has charged her with the principal and interest of this note and the estate has lost nothing by reason of her hesitancy in entering upon litigation. The estate has been so saved the peril of such an action and all question as to the responsibility of the maker of the note. Under such circumstances we can see at most only a mistake in judgment on the part of the administratrix. ■ She should be allowed the usual commissions.

The surrogate also omitted to credit as paid on the note sixty-five dollars which the maker of the note paid to Miss Button. There is no dispute about this payment. This was made apparently at the request of the deceased and should be allowed as a" payment on the note, and’ the amount charged to the administratrix on account of this note should be reduced by that sum and interest from the date of death of the intestate.

■ The decree is modified by 'the- allowance of commissions and the said payment of sixty-five dollars and interest, and as so modified affirmed, with costs to appellant from the estate. The surrogate of Washington county is directed to so modify the decree of record in the Surrogate’s Court and after allowance of costs of the appeal, the commissions and said payment, to reapportion the amount to be distributed in conformity with such modification.

All concurred.

Decree modified as per opinion and as so modified affirmed.  