
    VON KOENNERITZ v. ZILLER.
    
    (No. 357-3149.)
    (Commission of Appeals of Texas, Section B.
    Dec. 6, 1922.)
    Executors and administrators i&wkey;)495(l)— Money advanced by co-executor to pay debts treated as money received for purpose of commissions of other executor.
    Where one of two independent executors of a will, who was also a residuary legatee, advanced money to the attorney for the executors, which was paid out on legacies and debts of the estate, the other executor was entitled to commissions thereon, the same as though such money had been furnished by a third party, being money received by the executors.
    <35=»ITor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.
    Suit by Henry Ziller against S. J. Von Koenneritz. Judgment for plaintiff, and defendant brought error, in the Court of Civil Appeals, which certifies question.
    Question answered.
    Geo. S. Dowell and Robt. E. Cofer, both of Austin, for plaintiff in error.
    
      
      t F. 0. Von Rosenberg, of Austin, for defendant in error.
    
      
      Rehearing denied January 10, 1923.
    
   HAE1ILT0N, J.

The case is before us on a question certified to the Supreme Court as follows:

“Defendant in error brought suit in the county court of Travis county to recover certain commissions which he alleged to be due him as coexecutor of the estate of Henrietta Blau, deceased.
, “The facts are as follows:
“Henrietta piau, deceased, appointed appellant and appellee independent executors of her will, which was duly probated. Both executors qualified and returned an inventory of her estate. Appellant was the residuary legatee of the estate.
“There was on hand at the time of the death of deceased cash $374.62 and notes of the aggregate face value of $10,310. All of this was in the hands of appellant at the time of the death of Mrs. Blau. For some years he had been her business agent and confidential adviser, and as such had possession of ¿er money and notes. Soon after the will was probated appellant refused to allow appellee to have' anything to do with the administration.
“The will provided that'Various legacies, aggregating $4,025, should be paid by the executors. These were paid by'checks drawn by the attorney of the executors on a fund placed to his credit by appellant for that purpose. The attorney of the executor's took receipts therefor, executed to both of the executors. Debts of the estate, aggregating $1,286.04, were paid in like manner. Appellant collected debts •due the estate to $844.
“Payments of debts and legacies were from the following sources:
Cash on hand at death of deceased.$ 374 62
Money collected. 844 00
Money borrowed by appellant. 3,500 00
Out of his own funds. 592 42
$5,311 04
Deducting cash on -hand... 374 62
Leaves ... $4,93(1 42
“This sum the trial court treated as money received by the executors, and found that ap-pellee was entitled to 2% per cent, thereof, amounting to $123.41. The court also allowed appellee 2% per cent, on $1,286.04, money col-ected, to wit, $32.15, making a total of $155.56.
“The money borrowed by appellant was upon his individual credit, and upon collaterals furnished by him.
“This suit was tried in the county court by , the court without a jury on appeal from a justice court. We affirmed the judgment of the trial court allowing defendant in error the commissions claimed by him. The case is now pending in this court on motion for a rehearing.
“In- view of the novelty ds well as of the importance of the question here certified, and in view of the further fact that appellant cannot prosecute a writ of error herein, wo deem it proper to certify to your honorable court the following question Which is presented by the pleadings and the evidence1 herein, and is material to a proper disposition hereof, to wit: Should defendant in error have been allowed commissions on the whole of the $4,936.42. oi only on the $844, shown in the foregoing statement of facts? In other words, should fhe $3,500 borrowed by plaintiff' in error, and the $592.42 advanced by him, all of which was paid out on legacies and debts of the estate, be treated as money received by the executors?"

In so' far as Ziller is concerned, the only difference between this transaction and one which would have arisen, if the money had been received from a third person, lies in the fact that Yon Koenneritz, the coexecutor, supplied the money. It was 'deposited to the credit of the attorney of the executors for the purpose of paying debts of the estate. Ziller became responsible, in the same degree, for the money as if it had been received from any other person. If Von Koen-neritz, as residuary legatee, desired to avoid payment of commissions by the estate, he could have done so by giving bond as required in the withdrawal of estates from administration and discharging the executors. Instead of doing so, he chose to pursue a course that imposed on Ziller all the duties and responsibilities that would have arisen from the receipt of the money from any other person.

Therefore we recommend that the question be answered to the effect that defendant in error should be allowed commissions on the whole of the $4,936.42.

CURETON, O. J.

The opinion of the Commission of Appeals answering certified questions is adopted and ordered certified to the Court of Civil Appeals.  