
    In the Matter of the Estate of Robert Newland, Deceased.
    
      (Surrogates Court, Chautauqua County,
    
    
      Filed April 18, 1894.)
    
    Executors, etc.—Commissions
    Where the personal property of the estate exceeds $100,000 in value, over all its debts, and two executors qualify and act together in its administration for more than sixteen months, when one of them dies, two full commissions will be allowed on final settlement: one to the surviving executor, as to a sole executor, and, in addition thereto, one-half of the legal commissions upon all property undistributed at the death of his co-executor; and another to the estate of the deceased executor upon all property paid out or distributed at his death, and also one-half commissions upon all property, not then distributed, but to be distributed upon final settlement.
    Application to determine commissions upon final settlement.
    
      Frank W. Stevens, for Fred. A. Bently, surviving executor, and Evelyn N. Post, sole legatee; Jerome B. Fisher, for Frank E. Gifford, executor of the estate of John J. Kinney, deceased, and his daughter Margorie Kinney, minor legatee under his will, and M. M. Skiff, her general guardian.
   Sherman, S.

The personal estate of the testator exceeded in value more than $100,000, over all his debts. By his will he appointed Fred. A. Bently and John J. Kinney, Esq., executors thereof, both of whom qualified upon probate of the will on October 8, 1891, and continued to act together in administering the estate up to the death of said Kinney, on February 19, 1893; since which time the surviving executor has acted alone in administering the estate. The executors during one year and four months prior to the death of Kinney, had collected, paid out, and distributed to legatees and others a considerable portion of the estate of the testator and then had in their hands, undistributed, money and securities of said estate of the amount and value of over $30,000. The learned counsel of the surviving executor strongly claimed, upon argument and by his brief, that only one full commission should be allowed upon this settlement, and that to the surviving executor, and none to the deceased executor.

I hold and decide that the surviving executor is entitled to receive as a compensation for his commissions upon the final settlement and distribution of the estate, the same that by law he would have been entitled to if he had been sole executor, and in addition thereto one-half of the commissions, allowed by law, upon all property of the estate on hand and undistributed at the death of his oo-executor, John J. Kinney, on February 19, 1893. And I hold and decide that the executor of the estate of said Kinney, represented in this proceeding is entitled to full compensation for commissions allowed by law upon all the property of the estate of the said Kobert New land actually received, paid out, and distributed to legatees and others by both of said executors up to the time of the death of said Kinney, on February 19,1893, and that the estate of said Kinney is also entitled to one-half the commissions allowed by law upon all property of the estate of the said Newland held by both executors and remaining on hand on February 19,1893, undistributed, the same being in this case one-half of one per cent.; thus allowing, in all, two full commissions upon all the property, real and personal, of the decedent, Robert Newland, authorized to be sold and distributed under his will. Section 2736, Code of Civ. Pro., as amended by chap. 686, Laws of 1893; Welling v. Welling, 3 Dem. 511; Matter of Garrison, N. Y. Law Journal, July 28, 1890; Matter of Kennedy, N. Y. Law Journal, June 13, 1891; Red. Sur. Pr., 5th ed., note 2, 813; Smith v. Buchanan, 5 Dem. 169, holding that the proceeds of sale of real property made by the executors under the will are to be recorded as part of the personal estate for the purpose of allowing commissions under § 2736, Code of Civ. Pro. Matter of Kenworthy, 44 St. Rep. 275, holding that where the estate exceeds $100,000 personal property, over all debts of the decedent, and there are but three executors, each is entitled to full commissions, based upon the whole estate, irrespective of which executor actually handled it. Opinion of Barnard, P. J., 2d Dept., S. C. The above authorities appear to be in line with justice to the rights of all parties concerned.

I direct decree accordingly, upon final judicial settlement and distribution of this estate; and that ten days’ notice, for the hearing and adjustment before the surrogate, as to values and amount of commissions, be given to all parties interested.  