
    (53 Misc. Rep. 200.)
    In re KEMPF’S ESTATE.
    (Surrogate’s Court, Kings County.
    February, 1907.)
    Executobs and Administeatobs—Continuing Business of Decedent.
    Testatrix provided for the continuing of her business after her death ■ and her executor and executrix entered into an agreement by which the executor was to manage the business as he had in the lifetime of the testatrix, and be paid the same compensation therefor, and he continued to manage the business to the advantage of the estate. Heltl, that the arrangement would be upheld.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 22, Executors and. 'Administrators, §§ 407, 408.]
    
      In the matter of the judicial settlement of the estate of Marianne Kempf, deceased. Decree rendered.
    Henry Fuehrer, for petitioner.
    Leopold Blumberg, for general guardian.
   CHURCH, S.

There is no present necessity for the determination of the time at which the various estates vest under the will in question, and I shall not now consider them. The moneys paid to the executrix for the support and maintenance of the infants appeared to have been all expended. The fact that in certain of her duties she has paid the moneys to the estate does not justify her in demanding they should be repaid to her.

The arrangement that the executor, in carrying on the business, should be paid a commission based upon the amount of the business, is, perhaps, a somewhat unusual one; but there is nothing showing its impropriety. The executor has evidently managed this business with rare skill, as the net value of the estate has more than. doubled in his hands. He states positively that the amount which he has been paid is precisely the sum he was receiving from the deceased during her lifetime when he was managing the business. The executrix herein presumably had fair access to the books and an opportunity to disprove this statement, if it was untrue. As she has not done so, it seems proper to assume that, when the deceased permitted the executor to continue the business, she meant that he should receive the same compensation for its conduct as executor as he had received from her as an employé.

The commissions to the executor and the executrix will be fixed in accordance with the decision of the Court of Appeals in Beard v. Beard, 140 N. Y. 260, 35 N. E. 488. Account confirmed.

Decreed accordingly.  