
    
      In re Kenworthy’s Estate.
    
      (Supreme Court, General Term, Second Department.
    
    February 8, 1892.)
    1. Executors—Right to Commissions.
    Under Code Civil Proo. § 8736, providing that, when the personal estate of a decedent amounts to $100,000 or more over all debts, each executor, not exceeding-three, is entitled to full compensation, unless the court shall apportion the aggregate according to the services rendered, one of three executors who qualifies, and does some acts of administration, there having been no apportionment, and the estate-exceeding the amount specified, is entitled to full commissions, based upon the-whole estate. In re Mantee, 31 Hun, 119, distinguished.
    2. Trustees—Compensation.
    On an accounting by executors, who are also trustees, in addition to their compensation as executors they are entitled to one-half commissions for receiving the trust fund, and one-half on such portions as they have paid out.
    8. Executors and Administrators—Accounting—Apportionment op Tax.
    Where a tax is assessed against a decedent’s estate as a whole, a decree, on final accounting, apportioning the tax ratably against a trust fund and the balance of the estate, is just.
    4. Taxation—Assessment of Decedent’s Estate.
    An assessment of a tax against the estate of a decedent is not valid. The tax should be against the owner of the property, whether held absolutely or in trust. Trowbridge v. Horan, 78 N. V. 439, followed.
    5. Executors and Administrators—Accounting—Validity of Tax.
    Where the validity of a tax against a decedent’s estate is in question upon a final accounting, the decree should provide for the retention of the amount of tax until it is shown that it ought lawfully to be paid.
    6. Same—Counsel Fees.
    An executrix is entitled to be allowed for services of counsel upon a final ao counting by the other executors.
    Appeal from surrogate’s court, Dutchess county.
    Final accounting of Bichará A. Kenworthy and Alanson H. Saxton, executors of Thomas Kenvvorthy. Martha J. Kenworthy, executrix, appeals from a decree disallowing her commissions, authorizing the executors as trustees to retain commissions on the trust fund in advance, and apportioning a tax assessed on “the estate of Thomas Ken worthy” upon a trust fund in the executor’s hands and the balance of the estate.
    Modified.
    Argued before Barnard, P. J„ and Dykman and Pbatt, JJ.
    
      W. Farrington, for appellant. Wilkinson <& Cossum, (CharlesF. Cossum, of counsel,) for executors, respondents. Jacob Halstead, guardian ad litem.
    
   Pratt, J.

Section 2736 of the Code provides that, where a decedent’s personal estate amounts to $100,000 or more over all debts, each executor, not exceeding three, is entitled to full compensation, unless the court shall apportian the aggregate according to the services rendered. I do not understand that the power to apportion includes the power totally to abate any executor’s compensation, except, possibly, in the ease of misconduct, resulting in loss, or where the net estate is less than $100,000. There seems to have been no occasion to apportion the aggregate in this case; at least no such thing was done, and nobody complained on that account. Two executors have received their full compensation. The executrix was not allowed any compensation. I think this was wrong. The statute, as applied to this ease, says that she was entitled to full compensation, because there was nothing taken from her compensation, or any apportionment. She qualified, and did do some acts in administration. The basis for her commissions is the amount of the estate. I can see no other meaning to the words “full compensation.” This “compensation” is by means of commissions. -Full compensation, therefore, means “full commissions;” and that is based on the whole estate, irrespective of which executor actually handled it. Valentine v. Valentine, 2 Barb. Ch. 430. I do not understand the Case of Manice, 31 Hun, 119, to be in conflict with these views. That was a case of two executors who had administered an estate. It does not appear that the net estate amounted to $100,000. Hence there was but one commission to be allowed, and that was 9warded to the executor who did the work. Here, as already observed, the statute is peremptory, and gave this executrix full commissions, because nothing was taken from her commissions by apportionment. I do not understand that the surrogate has allowed full commissions to the trustees as trustees, but one-half commissions for receiving the trust, and one-half for paying out such a part as they have paid. This seems sanctioned by authority.

Assuming that the tax was a proper charge, the disposition which the surrogate made of the matter was just and fair. We cannot now undertake to hold the tax invalid as against the public authorities, and it may be that we could not lawfully do so when we come to hear what they have to submit. But it would seem from the facts now disclosed that it may well be doubted if any tax is payable. There seems to be an irregularity in the assessment, which, under Trowbridge v. Horan, 78 N. Y. 439, will render it invalid. The tax authorities cannot tax the estate of a decedent. They may tax the property against the owner thereof, whether held absolutely or in trust. They do not seem to have done that, but to have assessed the estate as such. This form of assessment was held invalid in Trowbridge v. Horan, and I do not see why it was valid in this instance. I cannot, therefore, concur with the. learned surrogate in actually charging the parts of this tax on shares. Hon constat, it may never be paid. For aught that I can now see, it ought not to be paid. It may be, however, that when the public authorities come to be heard on this matter, they may show some facts, not now disclosed, which will show that this tax ought lawfully to be paid. If so, it will be time enough to direct payment thereof. The decree should therefore be modified by allowing the retention of the money in the proportions indicated which shall be charged if the tax is held payable; otherwise it should be distributed among the parties entitled thereto.

■ In view of the fact that the appeal of the executrix is well founded, she ought to have her costs and disbursements of this appeal, payable as a part of the expenses of the estate generally. The result also shows that it was reasonable that she should have the benefit of the advice and services of counsel before the surrogate on the accounting. She was therefore entitled to indemnity against her expense for that cause, within the statutory limit, quite as plainly as for her traveling and other expenses. The decree should be resettled so as to provide for her commissions and the costs and disbursements of this appeal and her counsel’s services, within the statutory limits, as part of her expenses, and also to provide for the tax matter as herein indicated.

All concur.  