
    Matter of the Estate of Robert Newland, Deceased.
    (Surrogate’s Court—Chautauqua County,
    April, 1894.)
    The personal property of the estate exceeded in value $100,000 over all debts of the testator. There were two executors ; both qualified and acted together in administering the estate during over one year and four months, when one of them died. Held, that two full commissions must be allowed on final settlement, one to the surviving executor, the same as to a sole executor, and also full commissions to the estate of the deceased executor to the time of his death upon all money and property of the estate received, paid out or distributed to that date, and also one-half commissions upon all funds and property on hand and not then paid out and distributed and to be distributed upon final settlement, being in this case one-half of one per cent.
    Application to determine commissions upon final accounting.
    
      Framh W. Stevens, for Fred A. Bentley., surviving executor, and Evelyn FT. Post, sole legatee.
    
      Jerome B. Fisher, for Frank E. Gifford, executor of estate of John J. Kinney, deceased, and his daughter Margorie Kinney, minor legatee under his will, and M. M. Skiff, her gen: eral guardian.
   Sherman, S.

The personal estate of the testator exceeded in value more than $100,000 over all his debts. By his will he appointed Fred A. Bentley and John J. Kinney, Esquire, executors thereof, both of whom qualified upon the probate of the will on October 8, 1891, and continued to act together in administering the estate up to the death of said Kinney on February 19, 1893, since which time the surviving executor has acted aloné in administering the estate.

The executors, during the one year and four months prior to the death of Kinney, had collected, paid out and distributed to legatees and others a considerable portion of the estate of the testator, and then had in their hands undistributed money and securities of said estate of the amount and value of over $30,000.

The learned counsel of the surviving executor strongly-claimed upon the argument and by his brief that only one full commission should be allowed upon this settlement, and 'that to the surviving executor, and none to the estate of the deceased executor.

I hold and decide that the surviving executor is entitled to receive as compensation for his commissions upon final settlement and distribution of this estate the same that by law he would have been entitled to if he had been sole executor, and in addition thereto one-half of the commissions allowed by law upon all the property of the estate on hand and undistributed at the death of his coexecutor John J. Kinney on February 19, 1893.

And I hold and decide that the executor of the estate of said Kinney, represented in this proceeding, is entitled to full compensation for commissions allowed by law upon all the property of the estate of the said Kobert FTewland actually received, paid out and distributed to legatees and others by both of said executors up to the time of the death of said Kinney on February 19, 1893, and that the estate of said Kinney is also entitled to one-half the commissions allowed by law upon all the property of the estate of said FTewland held by both executors and then remaining on February 19, 1893, undistributed, the same being in this case one-half of one per cent, thus allowing, in all, two full commissions upon all the property, real and personal, of the decedent, Kobert FTewland, authorized to be sold and distributed under his will. § 2736, Code Civ. Proc., as amended by chap. 686, Laws of. 1893 ; Welling v. Welling, 3 Dem. 511; Matter of Garrison, N. Y. Law Jour., July 28, 1890; Matter of Kennedy, Id. June 13, 1891; Kedf. Sur. Pr. (5th ed.) note 2, 813; Smith v. Buchanan, 5 Dem. 169, holding that the proceeds of sale of real property made by the executors under the will are to be reckoned as part of the personal estate for the purpose of allowing commissions under section 2736 of the Code of Civil Procedure; Matter of Kenworthy, 44 N. Y. St. Repr. 275, holding that where the estate exceeds $100,000 personal property over all debts of the decedent, and there are but three executors, each is entitled, to full commissions based on the whole estate, irrespective of which executor actually handled it.

The above authorities appear to be in line with justice to the rights of all parties interested.

I direct decree accordingly upon the final judicial settlement and distribution of this estate, and that ten days’ notice for the hearing and adjustment before the surrogate as to values and amount of commissions be given to all parties interested.

Decreed accordingly.  