
    Sarah M. Van Sise, Appellant, v. C. Franklin Van Sise, Individually and as Executor, etc., of Charles A. Van Sise, Deceased, Respondent.
    Second Department,
    June 27, 1906.
    Executor’s commissions on annuity—when should be paid out of estate — agreement of heirs.
    When in lieu of the income from a stated amount of money left to a widow by will the heirs have agreed that she shall be paid a fixed sum out of the estate as an annuity, the executor’s commissions on the annuity should be charged to the estate and not deducted from the sum due the widow.
    Appeal by the plaintiff, Sarah M. Van Sise, from a judgment, of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 19th day of July, 1905, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint upon the merits.
    The action was brought by the plaintiff to recover of the defendant individually and as executor of the last will and testament of the plaintiff’s husband, deceased, for a semi-annual payment, claimed to be due her from him, and for sums ofinoney which he had theretofore withheld from her, claiming that they were his commissions upon moneys he had theretofore paid to her out of the estate.
    The 1st paragraph of the will of the deceased husband of the plaintiff is as' follows: “ After all my lawful debts and funeral expenses are paid, I give and bequeath to my wife, Sarah M. Yan Sise, -the interest on the sum of seven thousand dollars tp be paid to her by my executors hereinafter named semi-annuall-y as long as she shall remain my widow, this bequest to her- to be in lieu of her dowér and for her distributive share-in my estate, and at her death or remarriage the said sum of seven thousand , dollars is to be equally divided among my following named children, Ann E. Bumstaed, Mary, Amelia Yelsor, Frances M. Yelsor, Mahaly Seaman, .Peter E. Yan Sise, Charles Franklin Yan Sise and Frederick'S. Yan Sise.” - -
    -• Shortly after his death all of the heirs at law and legatees^ under his will entered into: the following agreement“ Know all men by these presents, That We, the undersigned, heirs at law and legatees > . . under the Will of Charles A.. Yan Sise, deceased, do hereby agree and consent -that the executor of the last Will and Testament of Charles A; Yan Sise,, deceased,, pay to Sarah M.'Yan Sise, widow .of said deceased the sum of Three Hundred and Seventy-five dollars each year during her natural-life the same t-o. commence from-the ■ date of the death of said Charles A.. Yam Sise, the said sum of Three Flundred and Seventy-five dollars to be in lieu of the interest in the sum of Seven Thousand dollars as mentioned in the will of said deceased. - And it is further agreed that the Huntington Bank Stock shall remain in the estate and in the' event of the fund of $7,000 not bringing" interest sufficient, to meet, the payment of $375.00 yearly then the dividend on-said stock shall be applied to make up the deficiency and bringing said .amount up to the sum of $375.00.
    “ Said agreement being binding upon each of us and our heirs.” ' Appended to this agreement is the following memorandum signed by the plaintiff: “ In Consideration of the premises in the foregoing agreement, I, Sarah M., Yan Sise hereby consent to said agreement and become a party thereto the same as if my name was 'signed to the foregoing agreement. - In Witness Whereof I have hereunto ' set my hapd and seal this. 26th day of - March, 1902.” ■
    
      Thomas Young, for the appellant.
    "Nathan O. Betty [Natha/n B. Betty with him on the brief],' for the respondent.
   Per Curiam :

The plaintiff was acting well within her rights in the execution of the agreement subsequent to the death of the testator. It is clear, however’, from the agreement that it was within the contemplation of the plaintiff, the defendant, and all the heirs at law and legatees of the deceased, that the payments to be made to her should come out of the estate of the deceased. That being so, the executor was no doubt entitled to his commissions, payable out of the fund and not from the annuity.

The judgment, however, is erroneous' in that it has refused to adjudge due to the plaintiff the semi-annual payment 'which was tendered on February 10, 1903; this amount is admittedly owing the plaintiff, and it was error to charge the commissions against the plaintiff.

The judgment should, therefore," be modified by inserting the provision for the recovery of $178.13 by the plaintiff against the defendant, together with all commissions charged against plaintiff’s annuity, and striking out the provision relating to costs, and as so modified affirmed, without costs to either party.

Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred.

Judgment modified in accordance with opinion per curiam, and as so modified affirmed, without costs.  