
    In the Matter of the Judicial Settlement of the Accounts of Thomas Nelson, as Executor of the Will of Charles A. G. Depew, Deceased.
    
      (Surrogate’s Court, Westchester County,
    
    
      Filed April, 1888.)
    
    Executobs—Compensation of.
    An executor, one of two or more named in a will,. wio does not aet or qualify until after the death of one who did so qualify and act, is entitled to lull commissions on the sums received and paid out, and half commission on the amounts received and not paid out.
    There were three executors, Nelson, Brown and Tompkins, appointed by the testator in his will, of whom Brown alone qualified as executor in the first instance. He died in 1885. After his death, letters testamentary on the will of testator were granted to Nelson, one of the other executors named in the will, and he presented his accounts for settlement. Brown, during his life-time, made and filed three several accounts on as many different occasions upon which decrees were entered, and after his death his executors made an accounting and passed over to' Nelson the money and other properties of the estate of testator Depew, amounting to $16,000. Brown had received in his life-time the commission provided by statute. Nelson received over $13,000, of which he had paid out over $13,000, and retaining the balance, which he had invested under the provision of the will.
    
      Lent & Herrick, for executors.
   Coffin, S.

The question here to be considered is in regard to the amount of the commissions, to which the present executor is entitled, on this accounting. There seems to be no statutory provision directly affecting it. Full commissions are allowable to a temporary administrator, where he does not subsequently become the administrator in chief, or the executor of a will, pending a contest over which, he is appointed such, temporary administrator (Code, §.2738). So, too, if a sole executor die leaving some portion of the estate unadministered, -and an administrator with the will annexed be appointed, the latter will be entitled to full commissions on the portions coming into his hands as such; and the same principle governs in the case of an administrator de bonis non. I think it applies with equal force to an executor, one of two or more named in st will, who does not act or qualify until after the death of' one who did so qualify and act. He, in effect, is the successor, and takes up the estate where his predecessor left it,, just as does the administrator in chief, de bonis non, or with the will annexed as above stated, and is entitled to commissions in like manner. The decree in this matter will, therefore, award full commissions to the present executor on the sum received and paid out, and half-commissions, only, on the amount received and not paid out.  