
    In the Matter of the First Judicial Accounting of Minnie J. Nester and Others, Executors and Trustees under the Last Will and Testament of Samuel K. Nester, late of the City of Geneva, Ontario County, New York, Deceased. Montgomery S. Sandford and David S. Nester, Executors and Trustees, etc., Appellants; Minnie J. Nester and Others, Respondents; Lewis W. Keyes, as Special Guardian of Harold A. Nester, an Infant, Respondent.
    
      (Supreme Court, Appellate Division, Third Department,
    
    
      Jan. 6, 1915.)
    Decedent’s Estate—Executors and Administrators—Election Between Compensation Provided by Will and that Allowed by Statute.
    An executor to whom a specific compensation has been given by will may renounce that right within a reasonable time and elect to take the allowance given to executors by law. But such right of election may be waived.
    Thus, where a will gave to executors a certain yearly salary in lieu of all commissions and they drew the same in monthly installments for over two years, receiving checks hearing a statement that they were accepted in full of executors’ salaries, and they continued to draw such salaries for another three years, there was an election to take the salary provided for in the will, although they had in the meantime filed in the Surrogate’s Court a renunciation of the specific compensation and an election to take statutory commissions, which fact they concealed from those interested in the estate.
    Smith, P. J., dissented, in opinion, in which Woodward, J., concurred in part.
    Appeal by Montgomery S. Saudford and another, two of the executors and trustees under the last will and testament of Samuel K. Hester, deceased, from parts of a decree of the Surrogate’s Court of the county of Ontario, entered in the office of said Surrogate’s Court ou the 20th day of February, 1914, settling the accounts of the executors and trustees herein but denying to the appellants commissions as executors and trustees and awarding to them only the specific compensation provided for in the will.
    The notice of appeal states that the appellant executors and trustees also appeal from part of the decree “ in behalf of the infant Harold A. Hester,” but the special guardian takes no appeal.
    This appeal was transferred from the Fourth Department to the Third Department of the Appellate Division. (See 164 App. Div. 967.)
    H. D. Lapham (Daniel J. Kenefick, of counsel), for the appellants.
    Lansing Gr. Hoskins, for the respondents Minnie J. Hester and others.
    W. Smith O’Brien, for the respondent Rose W. P. Hester.
    Lewis W. Keyes, for the respondent Harold A. Hester, an infant.
   Howard, J.—

Samuel K. Hester died January 10, 1908. The appellants and several other persons were appointed executors of his will. The executors, other than the two appellants, were members of the family of the deceased, that is, they were his wife and his children. The testator directed in a codicil to his will that none of his executors should receive any compensation except the appellants here, and as to them the codicil provides : “ Except that Montgomery S. Sandford shall receive an annual salary of One thousand Dollars, and that David S. Hester shall receive * * * an annual salary of Fifteen Hundred Dollars. The above salaries to be in full for all commissions or salaries as executor or trustee.” The appellants and three others of those who were appointed executors qualified and have all acted as snch continuously up to this time. A few months after the will was probated an action was brought in the Supreme Court by certain members of the family for a construction of the will. This action did not terminate until March 15, 1910, at which time a decision was rendered (see Hester v. Hester, 68 Misc. Rep. 207) sustaining the will generally but holding invalid certain provisions thereof, among which was a provision that the executors and trustees should pay to the widow the sum of $3,000 per year during her life. Erom the time of their appointment and up until May 10, 1910, each of the appellants drew regularly each month one-twelfth of the annual salary given to him in the will; that is, David S. Hester drew $125 each month and Montgomery S. Sandford drew $83.33 each month. . About two months after the decision of the Supreme Court holding invalid the annuity to the widow, the appellants filed in the office of the surrogate a written paper purporting to be a renunciation of the specific compensation given to them by the will and electing, in lieu thereof, to take for their services the commissions allowed by law. They did not cease, however, to receive the specific compensation, but continued as before to take out of the funds of the estate their salary each month. The appellants were the two executors having the active management of the estate and the checks for these salaries were made out by the appellant Hester. They were signed by Hester and by the appellant Sandford. A few of them were signed by one of the other executors. At the time the appellants filed their written renunciation they did not inform their coexecutors, either in consultation or otherwise, of-their purpose to renounce the specific compensation and demand the commissions allowed by law. In fact they concealed, and intended to conceal, and they admit that they intended to con-' ceal, from their coexeeutors and the other persons interested in the estate their purpose to renounce. Previous to the alleged renunciation there appeared on each check these words: “ This check is accepted in full settlement of the following account. Ac. Executor’s Salary.” After the attempted renunciation, Nester, who prepared these checks, substituted in place of the words Ac. Executor’s Salary ” the words Ac. Executor’s Ooms.” And in the books of the company kept by Nester he substituted the abbreviation “ Ooms.” for the word salary. At the judicial accounting in September, 1913, the appellants first made known their purpose to demand commissions as executors and as trustees. The amount in dispute is very large and substantial, the total amount of the 'commissions demanded by the two appellants being $69,102.48. The salary which has been paid to them up to the time of the accounting, covering the same period, is $13,899.83.

An executor has a right within a reasonable time to renounce the specific compensation given to him by the will and elect to take the allowance given to him by law. (Code Civ. Proc., § 2730, as amd. by Laws of 1905, chap. 328; now Id., § 2753, as amd. by Laws of 1914, chap. 443.) These appellants attempted to renounce about two years and four months after the probate of the will. This was not an unreasonable time to wait before announcing their determination, providing that nobody’s interests were jeopardized by their failure to reach a conclusion sooner. (Matter of Arkenburgh, 38 App. Div. 473.) But it is contended that, in the meantime, the appellants had waived the commissions allowed by law and had elected to. accept the specific compensation provided in the will. Many decisions have been called to our attention holding that the intention of an executor to waive a statutory right need not necessarily be proved by express declarations, but may be shown by the acts and conduct of the parties. It is unnecessary for us to note such cases here or quote from those opinions for the soundness of the proposition is too apparent to need either precedent or argument to establish it. We are fully of the opinion from the facts presented in this case that these two executors did elect to accept the specific compensation provided in the will instead of the allowance made by law. This election, we believe, was made at the time the appellants qualified and assumed the duties of their offices, and that they continued of this mind for a considerable period thereafter is perfectly apparent. Just at what juncture they changed their minds is not so certain, but that is not of much importance.

But it is contended by the appellants that there was no election here for the reason that an election cannot be made until the person electing has full knowledge of the facts necessary to enable him to make an election; and in this case they say that they did not have full knowledge of the facts until the decision of March 15, 1910, which cut off the annuity to the widow, thereby abbreviating their terms of office. But this assertion seems to have little force, for very soon after these appellants assumed their offices, and more than two years before the decision was rendered, the widow had by written instrument surrendered her annuity. The appellants were fully aware of this; they recognized the validity of this surrender and acted upon it. The circumstances of the Supreme Court decision cannot, therefore, be held to relieve the appellants from the election which they had previously made.

The appellants elected; there can be no doubt about that. Afterwards they attempted, or at least indicated a wish, to renounce their election; but in this they seem utterly to have failed. In writing, they pretended to renounce the specific compensation; in fact, they did not renounce it at all, but continued to accept it. Had they come out boldly after the Supreme Court decision, and after filing their written renouncement, and taken the position that they had previously been deceived, thinking that their terms of office were to be continued much longer, previous to the decision, than they were to be under the decision, and that they had acted, therefore, in ignorance óf all the facts their position here would be much improved. They took no such frank and open position, however, but clung to their monthly salary with the same tenacity that they had clung to it before. They did not renounce; they only said that they had renounced. What they did amounted neither to a renunciation of their previous election nor the specific compensation.

Their whole attitude in this matter does not commend itself to the court. If they had concluded to renounce their specific compensation upon the rendition of the Supreme Court decision, assuming that they had a right to do so then, it was their duty to make their intention known. Their dealing in this particular with their coexecutors, and with the persons interested in the estate, was not open and fair and above board, as the law requires executors to act, and as it is assumed that honorable men will act; they were resorting to stealth and cunning to carry their point. They concealed their purpose to attempt to get a large amount of money from the estate in excess of what the testator had willed them to have for their services; and, while harboring such a purpose, one of the appellants .bargained with his coexecutors for extra pay for his services as bookkeeper. Had his associates known of his purpose to attempt to get this large sum of money in commissions they would not, it may be assumed, have agreed to the fifteen dollars per week extra compensation which they voted him. In order; to get this extra pay this executor stated that his salary under the will was too small, but even at that time his purpose to demand commissions instead of the salary had been fully matured in his mind. Such maneuvers, if resorted to in the business world, would breed distrust and drive away that “ confidence ” on which business men so much rely and on which Mr. Sandford as a banker relies.

It is our conclusion, first, that these appellants, with full knowledge of the facts, elected to accept the specific compensation given to them by the will of the testator; second, that they attempted to renounce this election but failed; third,' that they are not entitled to the commissions allowed to executors by law, and that the only reward for their services which they are entitled to is the specific compensation provided in the will.

The decree' should be affirmed, with costs.

All concurred, except Smith, P. J., dissenting in opinion, in which Woodwabd, J., concurred, except as to the views expressed in reference to the case of Matter of Arkenburgh (38 App. Div. 473).

Smith, P. J. (dissenting) :

An irrevocable election, as I read the authorities, implies a deliberate selection between two known alternatives. After an election has been made if the apparent situation is materially changed that election may be revoked, if such revocation works no harm to other parties. In 15 Oyc. 262 (note), in speaking of this rule, the editor says: Knowledge is not to be imputed as a matter of legal obligation, as the doctrine of election is not properly a rule of positive law, but a rule of practice in equity. . In order that a person who is put to his election should be concluded by it, two things are necessary. First, a full knowledge of the nature of the inconsistent rights, and of the necessity of electing between them. Second, an intention to elect manifested, either expressly, or by acts which imply choice and acquiescence.’ Spread v. Morgan, 11 H. L. Cas. (Clark’s) 588, 615 ; 11 Eng. Reprint, 1461, per Lord Chelmsford.” In Story’s Equity Jurisprudence (Vol. 2 [13th ed.], § 1097) the author says: Before any presumption of an election can arise, it is necessary to show that the party acting or acquiescing, was cognizant of his rights. When this is ascertained affirmatively, it may be further necessary to consider whether the party intended an election; * * * whether he can restore the other persons affected by his claim to the same situation, as if the acts had not been performed, or the acquiescence had not existed; and, whether there has been such a lapse of time as ought to preclude the court from entering upon such inquiries, upon its general doctrine of not entertaining suits upon stale demands, or after long delays.” In section 1098 the author further says: Questions have also arisen in Courts of Equity, as to the time when, and the circumstances under which an election may be required to be made. The general rule is that the party is not bound to make any election until all the circumstances are known, and the state, and condition and value of the funds are clearly ascertained; for, until so known and ascertained, it is impossible for the party to make a discriminating and deliberate choice, such as ought to bind him to reason and-justice. If, therefore, he should make a choice in ignorance of the real state of the funds, or .under a misconception of the extent of the claims on the fund elected by him, it will not be conclusive on him.” Under the rule of law as thus stated, the decision of Mr. Justice Foote (see Nester v. Nester, 68 Misc. Rep. 201) declaring certain of the trusts in the will void, presented to the executors a new state of facts, which gave to them the right to revoke their election theretofore made, and this they promptly did. Since such revocation they have done nothing inconsistent with their expressed intention to claim the commissions due under the-law. Their taking of their salary prior thereto has in no way affected the interests of any other party to the contest. No action has been taken by any other person connected with the estate upon the faith of their having elected to take the salary due under the will. It is contended that under the will the executors have the power to remove one of their number for any misconduct .in the execution of the duties of such executor, and that this power might have been exercised had the other executors known of the election to take the commissions provided by law. But such conduct is clearly not within the purview of the will as authorizing their removal as executors. It is further claimed that one of the executors was given a salary for keeping the accounts, which would not have been given to him had it been known that he had elected to take the commissions provided by law. But the duties thus performed were not executorial duties. They had the clear right to hire -such services, and the money paid to this executor therefore was the exact sum which had been paid to the party who had theretofore kept the accounts.

These executors have apparently been denied the right of election for two reasons. First, because from the beginning they have drawn from the estate monthly the amounts named as their salaries under the will; and, secondly, because they have concealed from others interested in the estate the fact that they had elected to take the commissions -allowed by law. The receipt of the salary allowed by the will was consistent with the fact of their election to take such salary prior to the decision of Mr. Justice Foote, which changed- the situation and rights of the trustees materially. Thereafter the monthly allowance was taken not as salary, but on account of commissions, and there can be no claim that they ever intended by such acts to waive their right to legal commissions. As far as the trust funds were concerned, they were required to take out their commissions before handing over the trust income to the beneficiaries. Otherwise they would have been deemed to have waived the rights to such commissions. (Olcott v. Baldwin, 190 N. Y. 99.) The fact that instead of reckoning each month upon just what commissions were payable upon the payments made to-the beneficiaries, they took from the funds the amount provided by the will, prejudiced no one and may be fully compensated, if need be, by charging interest upon the amounts improperly taken at that time. Confessedly, the moneys that have been 'drawn from the estate are very much less than the commissions allowed by law. The fact that these trustees concealed from others interested in the estate that they had made their election to take the commissions allowed by law, is in no sense a legal fraud, nor, in my judgment, are these executors subject to the criticism in the prevailing opinion for having committed any ethical wrong. They were working harmoniously in connection with the other executors in caring for the estate which had- been intrusted to them. They well knew if others interested in the estate became aware that they intended to claim their legal rights that there would be hard feeling and friction in all their subsequent business relations. There was no legal requirement that they should give personal notice to the other beneficiaries of their election. Their concealment of this fact could work no harm to the other beneficiaries, and at most it was a question of ethics rather than of law whether they should at once openly have proclaimed their intention, or remained silent for the sake of harmony. I can find no legal reason, therefore, for denying to these executors and trustees the right to revoke the election they first made to take the salary after the radical change in the situation made by the decision of Hr. Justice Foote, and I can find no act since Such revocation which would forfeit to them the right to their full legal commissions.

Were this question res novaI should concur in the result reached in the prevailing opinion, on the ground that under the will of the testator these trustees were entitled to no greater compensation than that allowed thereunder. The decision of the Second Department in Matter of Arkenburgh (38 App. Div. 473), though made by an able court, is not convincing. Under that decision a testator may deny to his executors any compensation, and if they act they can receive no compensation, because they have been denied the same in the will. If, however, a testator provides in his will that an executor may have $100 for his services and no more, the executor may elect to take the full commissions allowed by law, notwithstanding „ the prohibition in the will. This, to my mind, presents a legal paradox so absurd that such construction should not be permitted. If under section 2730 of the Code of Civil Procedure (as amd. by Laws of 1905, chap. 328), which is now section 2753 of the Code of Civil Procedure (as amd. by Laws of 1914, chap. 443), the right to the election is given to the executor, where there be no words of limitation in the will, the section as thus construed is logical and perhaps reasonable. Where, however, the will prescribes a definite limit to the compensation which they shall receive, that limit should, in my judgment, govern with like force as if the testator has required the exeecutors to act without compensation. Notwithstanding these views, it is perhaps more seemly to follow the decision of the Second Department, until the law shall be otherwise declared by the court of last' resort.

I, therefore, vote for a reversal of the decree in the matter complained of by the appellants.

Woodward, J., concurred, except as to the views expressed in reference to the case of Matter of Arkenburgh (38 App. Div. 473).

Decree affirmed, with costs.

NOTE ON COMPENSATION OF EXECUTORS AND ADMINISTRATORS.

At common law the office of personal representative was. regarded as honorary, to be performed without remuneration. (Manning v. Manning, 1 Johns. Ch. 527.)

But in the United States and Canada he is allowed a reasonable compensation for services. (Matter of Prentice, 25 N. Y. App. Div. 209 ; Halsey v. Van Amringo, 6 Paige 12.)

Executors are not entitled to compensation for services which are not properly connected with the settlement of the estate or for acts done for their own benefit. (Miller v. Congdon, 14 Gray Mass. 114.)

Commissions are generally payable on legacies and distributive shares as well as debts. (See Walton v. Gairdner, 111 Ga. 343.)

But not on specific legacies and property delivered in kind to distributees. (Matter of Whipple, 81 App. Div. 589 ; In re Robinson, 37 Misc. 366.)

Except where such delivery is equivalent to a payment in money. (Matter of Curtiss, 9 N. Y. App. Div. 285 ; Matter of Johnson, 57 N. Y. App. Div. 494.)

The compensation is governed by the law operative at the time of the rendition of his services, not by the law in force at the time of his appointment or the settlement of his accounts. (Key v. Jones, 52 Ala. 238. See Dakin v. Demming, 6 Paige [N. Y.] 95.)

Where an administrator collects assets in a foreign State and voluntarily brings them into this State his compensation is regulated by the laws of this State. (Satterwhite v. Littlefield, 13 Sin. & M. [Miss.] 302.)

Commissions %should be allowed on any and all property of deceased taken into possession and for which the executor or administrator accounts. (Betts v. Betts, 4 Abb. N. C. 317.)

Where a large portion of the assets of an estate consists of various kinds of property which have not been converted into cash, and the testator’s intention was that the estate was to be managed in the first instance by the executors, and then turned over to themselves, as trustees; for their management during the life of the trust, the executors are entitled to full commissions upon the value of the property to be turned over to them- as such testamentary trustees. (Matter of Freel, 5 Mills Surr. 269.)

Where it becomes unnecessary to exercise a power of sale by executors of their testator’s real estate, the personal property being ample to pay all bequests and an annuity to testator’s widow and the residuary legatees and devisees give written notice of their election to take the realty free from any and all powers of sale given to said executors, they are not entitled to commissions on the unsold realty in the absence of an actual sale. (Matter of Ducan, 10 Mills Surr. 463.)

The same person is entitled to commissions both as executor and trustee when, zapart from1 his executorial duty, there is a devise to him of the subject-matter of the trust, either express or implied; but in such a case he is not entitled to commissions as executor upon moneys received for the sale of real estate devised to the trustees and never sold by them as such. (Matter of Waterman, 6 Mills Surr. 537.)

In order to hold that a request to executor is in compensation for services there must .be language by which such inference cdn be inferred. (In re Kernochan, 104 N. Y. 618.)

The executor may renounce the legacy and take statutory commissions by a written renunciation. (Matter of Arkenburgh, 39 N. Y. App. Div. 473.)

A testator may deprive his executor of all compensation if he so expressly provides in his will. (Matter of Gerard, 1 Dent. Surr. 244.)

But a will should not be so construed if it can be otherwise construed with equal reason. (In re Marshall, 67 How. Pr. 519.)

Where executor accepts- office with knowledge that the will fixes his compensation lie is ordinarily entitled only to the amount fixed. (Matter of Arkenburgh, 38 N. Y. App. Div. 473.)

Executors and administrators have no right to appropriate assets of the estate on account of commissions until all allowance is made by the court. (Matter of Furness, 86 N. Y. App. Div. 96, etc. ; Meeker v. Crawford, 5 Redf. Surr. 450.)

But their right to commission is not lost by failure to retain funds. (Matter of Prentice, 25 N. Y. App. Div. 209.)

But they may retain a Sufficient fund in their hands to cover lawful commissions. (Wheelwright v. Wheelwright, 2 Redf. 501.)

The executor’s compensation has a preference over debts and legacies. (Williamson v. Wilkens, 14 Ga. 416.)

Interest is chargeable where commissions are appropriated in advance. (Wheelwright v. Rhodes, 28 Hun, 57.)

The executor having presented for settlement his final account as such, after the entry of the decree settling the same he will no longer act in the capacity of executor but thereafter as trustee. He is, therefore, entitled now to full commissions as executor, and the amount of his commissions as trustee will be determined upon his settlement in that capacity. (Matter of Rafferty, 5 Mills Surr. 534.)

Where upon the annual accounting of executors and trustees the- surrogate had passed upon the accounts, and had published a decision settling the same and directing the entry of a decree theeron- and thereafter and before the signing of . the decree one of the executors and trustees died and it appeared that the deceased excutor and trustee had during his lifetime performed all the duties of his administration and trust except the .ministerial act of “ paying out ” to be done pursuant to the decree, his estate will be allowed a full one-half of one per cent, commission for the “ paying, out ” directed by the decree. (Matter of Ziegler, 12 Surr. 104.)

Upon an accounting by the executors of a deceased executrix they are-not to be credited with commissions upon a mortgage taken by the deceased executrix upon a conveyance by her of real estate pursuant to a judgment for the specific performance of a contract made by the testator in his lifetime; where she neither received or paid out any of the moneys secured by the mortgage in -her life time and where the mortgage was not taken by anyone from her in place of cash, nor was anyone in a position to elect that it should be treated as money. (In the Matter of Dill, 6 Mills Surr. 539.)

The costs and expenses of an annual accounting by a testamentary trustee should be borne by the income unless they have been incurred in the administration, preservation or increase of the principal. (Matter of L. I. & T. Co., 10 Mills Surr. 64.)

Commissions are payable from the general personal estate of decedent. (Westerfield v. Westerfield, 1 Bradf. Surr. 198.)

Where personal estate is exhausted, compensation for services in selling. land for payment of debts and paying out- proceeds, is- a charge thereon. (Loftis v. Loftis, 94 Tenn. 232. See Matter of Mansfield, 10 Misc. [N. Y.] 296 ; Myers v. Bolton, 157 N. Y. 393.)

One who takes possession of the estate of a relative in time of war when there is no authority competent to grant letters of administration will' be considered as a trustee acting for "the best and will be allowed commissions on his accounts. (Lloyd v. Cannon, 2 Desaus. [S. C.] 232.)

One who is entitled to administer, but never actually does so, may be entitled to commissions as against one who does administer through improper conduct in obtaining a wrongful appointment and failing to deliver the estate to the former. (Pieral v. Debuys, 5 Mart. [La.] 428.)

Though a will is afterwards found invalid, this does not deprive the executor appointed of compensation for services rendered in good faith, (Comstock v. Hadlyme Ecc. Soc., 8 Conn. 254 ; Bradford v. Boudenot, 3 Fed. Cas. No. 1765, 3 Wash. 122.)

Commissions are not chargeable on legacies unless indirectly by way of abatement when the general estate is not sufficient to pay them: (Westerfield v. Westerfield, 1 Bradf. Surr. 198.)

And where realty is sold under direction of the will or decree of the court by the personal representative he is entitled to commissions. (Matter of Prentice, 25 App. Div. 209.)

Where business of decedent is carried on the proper compensation is a reasonable allowance for -time and labor in carrying on the business in addition to legal commissions. (Lent v. Howard, 89 N. Y. 169.)

Where a testator directs his executor to keep his estate invested and divides it into equal shares, one of which he gives to his widow to be paid to her within two years after her death, and one of the others to each of his three sons to be paid to them in annual payments after each has reached the age of twenty-one years; and where the provision for the widow is less than -she would receive if there were no will and there is nothing in the will importing an intention on the part of the testator that a -minor son shall be dependent upon her for support nor any provision made in the will for his support until he attains his majority and the payments to him of his -share in the estate begin under the terms of the will, he is entitled to have the income from his share of the estate paid to him1 in the meantime. (Matter of Rafferty, 5 Mills Surr. 534.)

Where a testator gives all the property pertaining to his business, part of which is a foundry, in trust to continue the business but to -stop the same when the trustee’s management fails to produce a certain profit and all the residue of the estate is given to the trustees to collect the rents and the income thereof with directions to pay the same to certain designated beneficiaries, the substituted trustee, upon accounting, is under no obligation to charge himself with rent of the foundry and pay the amount so charged into the trust of the residuum of the estate the net result to the beneficiaries under the trust remaining unaffected ■whichever course was pursued. (Matter of Froelech, 5 Mills Surr. 338.)

It appearing that the testator’s widow, one of the original trustees, instead of taking personal control and management of the business, employed a manager at a large salary and after a time resigned as trustee, and with the commission of ten per cent, of the profits of the business which had been allowed to her as compensation, formed a new company of which her second husband was president, who started a business in opposition to the business which he had managed for her when she was trustee, the substituted trustee is not chargeable with the loss of business during his administration, there being no direct proof of any loss occasioned by any lack of attention on his part. (Id.)

Inasmuch .as the rent of the foundry was not a running expense of the business as contemplated ¡by the testator, and as the limitation under which the business was to be conducted has not, therefore, been reached, the business should be continued by the substituted trustee. (Matter of Froelich, 5 Mills Surr. 338.)

Where a testatrix provides for continuing her business, an arrangement between her -executrix -and executor by which the latter should continue to manage the -business as he had done in the lifetime of the testatrix and be paid the -same compensation therefor, under which arrangement he continued to manage the -business with skill and to the advantage of the estate, will -be upheld. (Matter of Kempf., 6 Mills Surr. 60.)

An executor or trustee may be granted an -allowance for counsel fee paid in resisting an effort to remove -him from office only on the theory that the expenditure was made in due course of administration and for the benefit of the estate; that he was successful in avoiding removal is not of itself sufficient to justify the allowance. (Matter of Titcomb, 10 Mills Surr. 373.)

The estate cannot foe charged with the expenses of the executor in the employment -of counsel to oppose -a motion -by the executrix to -compel him to deliver to her certain personal property of the estate then in his hands upon which ihe claimed commissions. (Matter of Whitney, 10 Mills Surr. 111.)

On the judicial settlement of the accounts of an administratrix she may he -allowed from the estate the amount paid to counsel for services in resisting a proceeding to revoke her letters in which it was found that -she was the lawful widow of intestate and to have been at all times rightfully in office as administratrix. (Matter of Higgins, 10 Mills Surr. 370.)

An executor cannot be allowed for counsel fees until they have been actually paid. (Matter of Woods, 6 Mills Surr. 189.)

' Where a trustee made an investment in the bonds of an industrial corporation secured by the usual mortgage to a trustee, and during the trial of a proceeding to remove Mm, in which. the facts as to such investment were shown and its unlawfulness asserted the trustee sold the bonds without loss and reported that he had received and held the proceeds in place of the bonds, the services of counsel in the proceeding were not rendered for the benefit of the estate and there can he no allowance to the trustee for counsel fees, nor for sums paid to a real estate expert wihose services were primarily directed to the defense of the removal proceedings and in no way required for any general need of the estate. (Matter of Titcomb, 10 Mills Surr. 373.)

Payments to attorneys for services which should have been performed by the executor will not be allowed; nor will a bill for attorneys’ services in an unsuccessful endeavor to remove his co-executor. (Matter of Archer, 5 Mills Surr. 460.)

An executor of a deceased testamentary trustee is not entitled to commissions upon the trust estate in the hands of ihis testator at the time of his death, nor even upon sums of money which have since been collected by him for rents and interest on mortgages belonging to the trust estate. (Matter of Ingraham, 6 Mills Surr. 496.)

But where he is subjected to inconsistent demands by two successors of the original trustee, one a substituted trustee appointed by the surrogate, and the other an agent and representative of the S‘aPre:m,e Court to fulfil the same trust, he will not be required to turn over the trust estate without compensation for his services and the proper expenses which he has incurred in the payment of his counsel. (Matter of Ingraham, 6 Mills Surr. 496.)

An executor is chargeable on the judicial settlement of his account with rents of the decedent’s real estate wMch he has collected, including rents collected from real estate Specifically devised. (Matter of Woods, 6 Mills Surr. 189.)

Expenditures, since the death of the testator, for the entertainment of buyers in order to secure their good will, having been approved in all previous accounts, and having been continued by the substituted trustee and it not, appearing that the amounts therefor were improper or incorrect, he should not be charged therewith though unaccompanied by vouchers as it will be assumed that the testator, who had adopted such practice, in directing his trustees to carry on the business, contemplated the necessity of their doing the same in order that the business might be managed with the same degree of profit attained during his lifetime. (Matter of Froelich, 5 Mills Surr. 338.)

Where the expenditure for permanent improvements made to an- estate is made for the best interests of the remaindermen as well as the life tenant and does not contravene the terms of the will, the cost should be paid out of the corpus of the estate or apportioned between the life tenant and. the remaindermen according to the benefit accruing to each. (Matter of Whitney, 10 Mills Surr. 111.)

On the removal of a testamentary trustee because incompetent and otherwise unfit for the due execution of the trust and because it had been improvident in the management of the estate where the trust remained to be executed by a new trustee, commissions should not be allowed to the trustee removed. (In the Matter of Williamsburgh Trust Co., 6 Mills Surr. 541.)

Where an administrator has rendered services, the validity of his appointment cannot be questioned on the accounting, and he. is entitled to expenses and commissions. (Carroll v. Hughes, 3 Redf. Surr. 337.)

An executor will not be allowed extra compensation for his services, in serving citations in t'he proceeding for the probate of the will; and where, being a lawyer, he attends to all the business of conducting such proceeding an allowance will not be made to Ms brother-in-law, also a lawyer, for such services where the later went to the surrogate’s office at the executor’s request and simply stayed until it was over,” the executor thinking there might be come opposition; and where in the defense of a small claim the executor incurred unnecessary and unreasonable expense, his allowance therefor will be limited to the amount of taxable costs and disbursements. (Matter of Wick, 6 Mills Surr. 72.)

A representative is not entitled to commission for collecting a debt due by himself to the estate. (In re Hoffer, 156 Pa. St. 473.)

But is entitled on one due him' from the estate. (Matter of Mount, 2 Redf. Surr. 405.)

An executor cannot be paid out of the estate for his personal labor and services in repairing and painting the real estate of the decedent. (6 Mills Surr. 189.)

A claim by an executor for services as undertaker' in burying the hus-, band of the testatrix eight years before her death is barred .by the statute of limitations and a payment of $400, on account of the claim, which is not shown to have been -made within six years before her death does not avail to take the claim out of the statute. (Matter of Pummer, 5 Mills Surr. 298.)

An executor should not be allowed $329.50 for the funeral expenses of his testatrix whose whole estate did not exceed $500.. In such a case $150 is a reasonable allowance; if the executor' desires greater ostentation and display than the estate can reasonably afford, he should pay for it himself. (Matter of Primmer, 5 Mills Surr. 298.)

An executor is not entitled to be allowed for interest on the bill of the undertaker, forming part of the funeral expenses of the decedent, when he has received moneys and paid them out 'for other debts of the estate and legacies. (6 Mills Surr. 189.)'

A husband, though insolvent, -who is appointed administrator of his wife’s estate, is entitled to compensation. (Moulton v. Smith, 16 R. I. 126 ; Reed’s Estate, 4 Phila. [Pa.] 375.)

Where income on trust fund is to be disbursed to the use and benefit of a person for life, the representative is entitled to commissions upon such income. (Foote v. Bruggerhof, 66 Hun, 406.)

No commissions on sums surcharged for neglect or misconduct. (Gilson’s Estate, 18 Kkly. Notes [Pa.] 570.)

Where an executor under a will has been awarded excessive commissions and allowances on each of his annual accountings, and has rendered his final account and been discharged, he is not guilty of “ constructive fraud,” and a suit in equity to recover such excessive allowances brought after ten years have elapsed, is barred by the statute of limitations. (Matter of Spaeeholz v. Sheldon, 11 Mills Surr. 453.)  