
    (26 Misc. Rep. 107.)
    In re FRANKLIN.
    (Surrogate’s Court, Queens County.
    January, 1899.)
    1. Claims against Decedent’s Estate—Taxes.
    Though a tax had. not become a lien at the time of a decedent’s death, yet the fact that he had become personally liable to pay it when it should be levied by the proper officers on the assessment rolls, which had become complete, made it a debt of decedent, which could be properly paid by his executors out of his estate.
    3. Wills—Estate Devised.
    Where a testator gives his residuary estate to his widow for life for' her separate use and benefit, the rents of real property, a'nd interest and dividends on investments represented by securities, accruing, but not payable at the testator’s death, belong to her, and need not be apportioned between her, as life tenant, and the remainder-men, as of the date of testator’s death.
    8. Decedent’s Debts—Funeral Expenses.
    The funeral expenses and expenses of administration are not debts of the testator.
    4. Executors—Compensation.
    Under Code Civ. Proc. § 2730, providing that where the personal property of a decedent amounts to $100,000 over all his debts, each executor, where there are not more than three, is entitled to full compensation allowed to a sdle executor; to be apportioned according to the services rendered by each respectively, three representatives are entitled to three times the full commission to one executor, to be apportioned in proportion to services rendered and responsibility borne.
    5. Same—Accounting.
    Where executors have in good faith distributed the estate without any judicial settlement, with the consent of the legatees, and the latter have suffered no loss, interest will not be charged such executors on commissions withdrawn from the estate on such distribution from the time of such withdrawal until an allowance of compensation by the surrogate on an accounting.
    Settlement of the account of the executors of Morris Franklin, deceased.
    Joseph K. Murray, for executors.
    Frederick Eder, for contestants.
   MOORE, J. (acting as surrogate).

The contestants filed objection to the account of the executors as filed, and thereafter counsel for executors and counsel for the contestants filed a written stipulation reducing the issues to be determined. Ho testimony was taken. The stipulation submits four questions, which were argued at length: First. Were the taxes of the year 1885 a debt of the testator? Second. Are the executors entitled to more than one full commission for compensation under section 2730, Code Civ. Proc.? Third. Did the testator intend that his widow should take accruing rents and interest of his residuary estate falling due after his death? Fourth. Should the executors be charged with interest on" commissions paid to themselves?

I think the tax for the year 1885 was properly paid by the executors out of the estate. Although the tax had not become a lien at the time of the death of the testator, he had become personally liable to pay the same when it should be levied by the proper officers upon the assessment rolls, which had become complete and unalterable. His liability to pay the tax so levied did not depend at all upon its becoming a lien, but rather upon his personal liability under the law regulating the assessment of property for the purposes of taxation. Mygatt v. Washburn, 15 N. Y. 316; Rundell v. Lakey, 40 N. Y. 513; In re Babcock, 115 N. Y. 450, 22 N. E. 263. The cases cited by contestants-Lathers v. Keogh, 39 Hun, 576; In re Hun, 144 N. Y. 472, 39 N. E. 376; Deraismes v. Deraismes, 72 N. Y. 154; Whitson v. Whitson, 53 N. Y. 479-do not apply to the issue here.

I have no doubt that the testator intended that his widow should take as income what he would have treated as income. Her comfortable support and maintenance was his first care, and to that purpose he gave to her own separate use and benefit the residuary estate for life. Moreover, his intention was just what the rules of law provide in these cases.

I cannot assent to the contention of the contestants that the rents •of real property, and interest and dividends on investments represented by securities, accruing, but not payable at his death, should have been apportioned between the life tenant and the remainder-men as of the date of the death of the testator. The life tenant did not succeed to the title to the real estate nor to the ownership of the personal property. The remainder-men succeeded the testator to the corpus of the estate. Apportionment in the class of cases within Avhich this case falls is required only where the successive takers of the estate become, at the same time, entitled to take the rents, interest, and dividends therefrom; so that no apportionment was required to be made until the remainder-men became entitled to take the income of the estate, to wit, upon the death of the life tenant. All the rents, interest, and dividends which became payable or accrued after the death of the testator and before the death of the life tenant went to the life tenant under the will, because the same were thereby specifically given to her. The use of the real and personal property is nothing more nor less than the rents of the real estate and the interest and dividends of the personal property. Bents are no less rents and interest does not become something else because they begin to accrue before the death of the testator. They are the earnings of the property, so to speak, and the property was, by the will, given to the remainder-men, and the earnings were given to the life tenant during her lifetime. Code Civ. Proc. § 2720; In re Weeks, 5 Dem. Sur. 194; Miller v. Crawford (Sup.) 14 N. Y. Supp. 358. The Leavitt property Avas, in the hands of these executors, personal property. The lots conveyed by the executors to certain of the legatees were conveyed and accepted as payment of so much of their respective shares in testator’s residuary estate. The aggregate of these payments with the other proceeds of the sale of these lots represent the sum received on the mortgage which was foreclosed by the executors, and it is subject to the commissions for compensation of the executors.

The personal estate of the testator was inventoried by the appraisers at $81,448.75, and the increase is $46,889.08, making a total of $128,-337.83, the losses aggregate $9,162.43, and the debts of the testator, which have been paid by the executors, aggregate $13,830.75, leaving a net balancé of $105,344.65 for the payment of funeral expenses, and the expenses of administration, and for distribution. The funeral expenses and the expenses of administration are in no sense debts of the testator. The estate being $100,000 exclusive of all the debts of the testator, and there having been two executors and one executrix, the three representatives are entitled to compensation equal to three times the amount of full commission to one executor, to be apportioned in proportion to services rendered and responsibility borne. In re Newland's Estate (Sur.) 28 N. Y. Supp. 496; In re Welling's Estate, 7 Civ. Proc. R. 92; In re Kenworthy, 63 Hun, 165, 17 N. Y. Supp. 655. Executors are not entitled to take commissions until the same have been allowed by an order of the surrogate on an accounting; and, if an executor takes commissions without such an allowance, he is chargeable with interest on commissions so withdrawn from the estate from the time of such withdrawal to the time of the allowance of compensation by the surrogate on an accounting. Wheelwright v. Rhoades, 28 Hun, 57. Instances will be found in the books where estates have been settled by agreement, and distributions made, the executor retaining commissions for his compensation, in which the executor has not been charged, in a subsequent judicial settlement of his accounts, with interest on the commissions so retained. In re Dunkel's Estate, 5 Dem. Sur. 188. These executors, in their account as filed, state that a settlement of the estate was had between the legatees and the executors, and that the executors distributed to the legatees their respective shares under the will, less the commissions allowed by law as compensation to executors, which they retained, together with their respective shares of the estate, and that it was then understood that the legatees would examine the account, and the same would be adjusted, and the executors finally released by the legatees without any judicial settlement. These statements are denied, but they are corroborated by Schedule E of the account, which shows that between January 2, 1895, and May of that year a general distribution was in fact made of nearly all the residuary estate, reserving only $2,000 to meet possible liabilities arising out of a pending action. In Wheelwright v. Rhoades, supra, the executors, soon after their appointment, withdrew $15,000 on account of commissions, while in this case the executors had become entitled to be allowed the commissions on a final settlement of their accounts by the surrogate, and retained them, as appears from the account, at the time of the distribution. They acted in good faith; the legatees have suffered no loss; and it would be unjust to now require the executors to pay interest on these commissions because they distributed the estate out of court, with the consent of the legatees.

Decreed accordingly.  