
    Kelley, et al. v. Kelley’s Exor.
    (Decided January 5, 1911.)
    Appeal from Warren Circuit Court.
    Executors — Commission—Money Collected from Principal on Which tlie Executor is Surety. — An executor ought not to be denied his commission on money collected from the principal because he, the executor, may be liable thereon as one of the sureties.
    SIMS & RODES and JNO. B. GRIDER for appellant.
    WRIGHT & McELROY for appellee.
   Opinion op ti-ie Court by

Judge O’Rbar

Affirming.

Stark was the executor of J. C. Kelley’s will. Prior to Kelley’s death he had intended to give Stark notes worth several thousand dollars and had delivered the notes to Stark. But the gift was incomplete, and it failed. (See opinion 113 S. W. 498.) Pending the litigation, Stark, who lived in Bowling Green, had listed tlie notes for taxation, and paid the taxes to the city. Since the decision in this court Stark has accounted for the notes to the estate. But he claimed and was allowed the sums paid as taxes. One question involved on this appeal is the correctness of that allowance. Remembering that Stark was also executor, and as such held the legal title to the notes, he should have listed them for taxes at his domicile, although the distributees of the estate resided elsewhere. Having paid the taxes,' though in his private capacity, it was proper in equity to credit him by the amount in his fiducial capacity, after he had so accounted for the notes.

In his last settlement Stark was allowed $456.88 as part compensation for his services as executor, being five per cent, on the sum which he collected and disbursed.' It is contended by the devisees of Kelley on this appeal that that credit was error, for three reasons:

(1) That he had abused his trust by attempting to appropriate the notes under his claim of personal ownership. But we think that he acted not in bad faith in that. Pie had grounds for so claiming. He ought not to he fined because of an honest mistake of judgment.

(2) It is said he ought not be allowed commission for collecting the notes from himself — he was endorser or surety on several of them. The answer is, he did not col7 lect them from himself, but from the principals. The fact is that he was liable for their sum when so collected, and his responsibility and care of the money when so received was not different than, if it had been paid on debts on which he was not bound.

(3) It is said that he was not allowed the commission on the notes 'claimed by him as gifts when their ownership was determined in the first judgment; and it is therefore res adjudicata, Further that $700.00 . of the notes he was allowed commission as in-the former settlement, and should not be allowed again. The first judgment did -not determine the question of his commission on the notes which he claimed. The question was not raised. If any sum embraced in the present total of claims for which he was allowed commission, was embraced in the former allowances this record fails to show it. Presumably the commissioner and the trial court found from the other parts of the record not brought up on this appeal that the allowances were not duplicated. At least we can not assume that it was. Appellants should have sworn it in the record, if it were a "fact.

Judgment affirmed.  