
    In the Matter of the Settlement of the Estate of William R. Welling, Deceased. Sarah Welling, as Sole Surviving Executrix and Trustee, etc., of William R. Welling, Deceased, and Others, Appellants. Thomas Welling and William R. Welling, as Executors, etc., of Thomas Welling, Deceased, Respondents.
    
      Allowances by a surrogate — not proper in the case of executors of a trustee, for services in the compromise of a devastavit by the trustee— art allowance should be made to the accounting party, not to Ms attorney — allowances to legatees.
    
    Upon an accounting by a testamentary trustee and the executors of her deceased cotvustee, the surrogate has no power, under section 2562 of the Code of Civil Procedure, to make an additional allowance to the executors of the deceased testamentary trustee, or to their attorney, for services rendered by the attorney preliminary or incidental to the compromise of a devastavit committed by the deceased trustee.
    In such a case no commissions should be allowed to the executors of the deceased trustee.
    Aa additional allowance, made under section 2562 of .the Code of Civil Procedure, should be mad'e to the accounting party and not to his attorney.
    The surrogate has no power. to grant additional allowances to legatees and remaindermen, or their attorneys, who are not successful upon the accounting in either surcharging or securing disallowance of itéms of the account.
    Appeal by Sarah Welling, as sole surviving executrix and trustee, etc., of William R. Welling, deceased, and others, legatees and remaindermen under said will, from a decree of the Surrogate’s Court of the county of Orange, entered in said Surrogate’s Court on the 9 th day of October, 1899, and especially from that part of said decree directing that Sarah Welling, the surviving executrix and trustee as aforesaid, pay to Thomas Welling'and William R. Welling, executors as aforesaid, or to George W. McElroy, the. attorney whq prepared the accounts of the executors, etc., of said Thomas Welling, deceased, the sum of $1,590 additional allowance under section 2562 of the .Code of Civil Procedure, allowed to them as sucli executors upon this- accounting from any money in her hands or under- her control belonging to the principal of said trust fund, and that she take and file their receipt for such payment, and directing the said Sarah Welling to pay to Thomas Welling and William R. Welling, the executors of said Thomas Welling, deceased, the sum of $400 . out of" the principal of said estate in lieu of full oneJialf commissions for receiving the corpus of. said trust fund.
    And the said Sarah Welling, as sole surviving executrix, etql, appeals especially from that portion of said judgment directing that she .pay out of the principal of said estate to Edward B. Sanford, attorney for Annie W. Sanford and others, the sum of $250 as an allowance. herein for. services, and that she also pay to Francis B. Sanford, attorney for Sarah Me. Sanford, the sum of $100 as an allowance herein.for services.
    
      F. V. Sanford, for the executrix, appellant.
    
      Edward B. Sanford, for the appellants Wisner and others.
    
      M. N. Kane, for the respondents Thomas Welling and William R. Welling, executors, etc., of Thomas Welling, deceased.
   Jems, J.:

• This is an' appeal from the parts of a decree on a judicial accounting in the Surrogate’s Court of Orange county that give certain allowances. The accountants are a testamentary trustee and the executors of her deceased cotrustee. Under section 2562 of the Code of Civil. Procedure, $1,590 was allowed to the- executors of the said testamentary trustee or to the attorneys who prepared the accounts, and $400 -was allowed to the said executors in' lieu of full half commissions for receiving the corpus of the trust fund. Some of the residuary legatees and remaindermen and the said executor and cotrustee take appeals therefrom. And the latter also appeals from that part of the decree awarding allowances to attorneys representing different remaindermen and residuary legatees.

In review of the surrogate, this court is vested with -the same power over questions of fact that he holds, and, upon any questions presented by the appeal, is to determine for itself, upon all the facts, as on the law, whether the decision is right. (Matter of Rogers, 10 App. Div. 593.) We properly may consider the decision of a surrogate upon the facts, for we might be well guided, but we are entirely free to depart from it.

1. As to the allowance. The affidavit of the attorney certifies that he was engaged 159 days, states his views of the necessity of his services, and is supported by the affidavits of an assistant and of one of the accounting executors. It appears that at the death of one of the two éxecutors and testamentary trustees, there was a large deficit of the trust funds that must be laid entirely at his door. This deficit was, in part, made good out of his estate, and á compromise followed. The affidavit of the. attorney states that he .prepared a statement upon which the compromise was based, and the details thereof appear in . a schedule of the accounts filed. But we cannot see that such statement ivas necessarily a part of the accounts. An accounting herein was demanded-in December, 1898, which was, however, regularly adjourned to the day of the final decree herein, in October, 1899. On January 21, 1899, the compromise of this deficit was made, recorded and executed, and, in August, 1899, a voluntary accounting was begun, whereupon the two proceedings for account-" ing were consolidated. Bpon the attorney’s own showing, a considerable part of his labors was devoted to the work preliminary and incidental to this compromise and it is also established that he was retained for that purpose. Moreover fifty-six of the days specified in his affidavit fell prior to the date of "the compromise, and, presumably, were devoted to the work of the. compromise. Such part of his labors, in our opinion, can form no basis for any allowance based upon section 2562 of the Code of Civil Procedure, for it does not appear that such time, was necessarily occupied in preparing this account for settlement. The claim must be presented anew to the learned' surrogate, who, we think, may properly make such allowance as is justified by the work germane to this accounting. Further, the allowance must be made to the executors and not to their counsel. (Seaman v. Whitehead, 78 N. Y. 306, 308 Code Civ.. Proc. § 2562.)

2. As to the allowance of $400 to the executors of the deceased. trustee. In Matter of Rutledge (56 N. E. Rep. 10) the Court' of Appeals held that the language of section 2730 of the Code of Civil Procedure is “ not necessarily exclusive of all discretion in the surrogate and that its exercisp should be left to him upon all the fact's, in the review of which by the Appellate Division ample opportunity for correction is afforded.” These executors stand in the shoes of their testator. . (Matter of Wiley, 119 N. Y. 642; Code Civ. Proc. § 2606.) Commissions are allowed to trustees as compensation for services in the execution of a trust, and in the case of gross neglect aild unfaithfulness the court may properly disallow them. (Cook v. Lowry, 95 N. Y. 104, 114; Matter of Matthewson, 8 App. Div. 8, 11,12 ; Stevens v. Melcher, 152 N. Y. 551, 583.) There are, in our opinion, no services shown that justify any allowance of commissions. The decree of the learned surrogate in this respect was, at best,- halting. It reads as follows : “ Aud it appearing that the deficiency in. the trust fund has been compromised and settled out -of -.court, but that said compromise did not pay said deficiency in full, one-half commissions for receiving the corpus of the said trust fund is denied the estate of the said Thomas Welling, except to the extent of -four hundred dollars, which said sum of four hundred- dollars the said Sarah Welling is hereby ordered and directed to pay to Thomas Welling and William R. Welling, the executors of said Thomas Welling, deceased,, from the principal of said trust fund, and file their receipt therefor.” The trustee defaulted in $75,000. The facts warrant the decree that the deficiency was due to- the administration of the trust intervening 1885 and 1,898, the year of the death of the trustee. The trustee failed and neglected for thirteen years of that time to make or to file any properly verified account, or to have his accounts settled. In the accounts that were kept by him he credited himself with commissions on income at the rate of ■nearly $600 a year, (then double his legal commissions),, and with expenses aggregating nearly $2,000. In--a degree, he intermingled principal and interest. He owed the estate $11,000 on due .bills. It does not appear that he deposited uninvested principal to jrroduce interest, or that he charged himself with interest save- in the period intervening' 1891 and 1898. . From 1885 to 1898, his account shows uninvested balances aggregating more than $80,000,. while at the .end of his trust the total reinvestments not lost by his administration. were less than $2,800. Specified securities of high character to the amount of $35,000 have disappeared, and are scheduled “ To be returned to trust fund or accounted for.” • Comment is cheap. These facts are sufficient to forbid the conclusion that any services were rendered. The respondents urge that the deficit was compromised ; but the compromise was made upon a basis that paid in $50,000 for $75,000 lost. A compromise that so adjusts the results of maladministration certainly cannot be turned to the benefit of the trustee, nor is the flagrant misconduct that causes the deficit to’be disregarded when we come to decide whether any services were rendered to the estate. The compromise is a bar to further restitution, but no basis for a further reward.

3. We think that the learned surrogate erred in granting any allowance to the two attorneys who represented' legatees and remaindermen, and that -he had no power in the premises even if he had made thé allowance payable dii’ectly to their clients. His power to grant allowances or costs is derived wholly from statutory provisions. (Jessup Suit. Pr. 256, and cases cited; McMahon v. Smith, 20 Misc. Rep. 305, and cases cited.) None of the remainder-men. or legatees stands as a successful party upon the accounting, for none succeeded in either surcharge or disallowance. We do not doubt that these attorneys rendered valuable services to their respective clients both in bringing about the compromise and upon the accounting. Their fees should be paid by their clients, and not in whole or in part be made a charge upon the funds of the estate under the guise of allowances that are not sanctioned by the statutes, or of costs that cannot be allowed under the law.

We are of opinion that the decree must be reversed in the parts relative to the allowances and commissions as indicated in this opinion, without costs of this appeal to any party. . The proceedings are remitted to the surrogate of Orange county for resettlement of the decree in accordance with this opinion. .

All concurred.

Decree reversed so far as it relates to allowances and commissions, without costs of this appeal to any party, and proceeding remitted-to .the Surrogate’s Court of Orange county to be disposed of in .accordance with the opinion of Jenks, J.  