
    In the Matter of the Settlement of the Accounts of Sarah M. Worthington et al., Ex’rs.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1893.)
    
    1. Executors and administrators — Fees—Assionment.
    Until the commissions of an executor are a certained and fixed in the manner provided by statute none are due, and there is nothing upon which an assignment can act.
    2. Same.
    An executor in payment for services assigned any commissions to which he might be entitled. He was removed on account of lunacy and died before a settlement of accounts. Held, that there was nothing upon which the assignment could act, and that the assignee was not interested in the estate.
    Appeal from order of surrogate refusing to open and amend a decree settling the accounts of executors.
    The,petition of John A. Bryan stated, among other things, that he is an attorney at law ; that in the year 1880 the deceased died, leaving a last will and testament which was duly admitted to probate, by which he appointed Sara N. Worthington, William L. Bull, Harry F. Worthington and Charles C. Worthington, executors and trustees, all of whom qualified; that immediately thereafter, said Harry F. Worthington retained the petitioner as attorney and counsel for himself both in his individual and representative capacities, from which time until February, 1888, when said Harry was declared a lunatic, the petitioner rendered valuable services for him, and claims a balance due to him of at least $10,000 over and above all payments made to him on account; that in February, 1885, his client, individually and as executor and trustee, for the purpose of securing the petitioner for the moneys then due and to become due, assigned, through the medium of a third person, whatever he, said Harry, might then or thereafter be entitled to receive as commissions in his capacity of such executor and trustee'; that in March,'1888, notice of such, assignment was given to the executor, Bull, and to the attorneys for Frances T. Worthington, the wife of said Harry, who was then the committee of bis person and estate. The petitioner then proceeds to detail services which he rendered for said Harry as executor, and alleges that he died insolvent in March, 1889, and that he will be remediless unless he can collect such commissions. He further alleges that, on the application of the surviving executors and on the 4th day of November, 1891, a decree was entered settling their accounts, knowledge of which was purposely kept from him; that it was adjudged in and by the decree that said Harry had taken no part in the management of the estate and was entitled to no commissións. Then follow allegations to the effect that said Harry did render services as executor, etc., and which allegations are denied by the surviving executors. The petitioner prays that the decree may be ppened and amended in respect to such commissions, and that when the right thereto shall have been fixed, they shall be paid to him, the petitioner.
    The widow of Harry F. Worthington was executrix1 of his will and was made a party to the accounting proceeding of November 4, 1891. Her husband was removed from his office of executor and trustee in February, 1888, as being wholly unfitted and incompetent, both physically and mentally, to properly perform his duties as such.
   The surrogate’s opinion was as fallows :

Coffin, S.

On the facts stated, the question arises as to whether the position of the petitioner, as assignee of accrued and accruing commissions, is such as to entitle him to be heard in the matter. Before the Code, this court could decree payment only to a party, and not to the assignee of a party; but now, by § 2743 of that act, it may decree payment to the creditors, legatees, next of kin, husband or wife of the decedent or their ■assigns. Now, as the petitioner is not the assignee of any of these, the court had no power to decree payment to him of any commissions that might, under any circumstances, ha-ve been ■awarded to his deceased client.

It seems to be well settled that a mere executor is not a person interested so as to disqualify him from testifying to transactions or communications had with the' deceased, under § 829 of the Code. Loder v. Whelpley, 1 Dem., 368-377; affirmed 111 N. Y., 239; 19 St. Rep., 631.

The commissions are given by statute as compensation for services, and do not accrue to the executor as a gratuity by force of the will. It therefore seems that the petitioner is not a person interested in the estate under subdivision eleven of § 2514. Had he been informed of the pending accounting proceeding in time, he could not have made himself a party to the proceeding under § 2731 because he was not a creditor or person interested in the estate, nor was he such a necessary party ” as is contemplated by § 2743. It would therefore seem that he is not in a position to make this application.

It is strongly urged by counsel for the executors that the commissions of an executor are not assignable, especially in advance of work to be done, and many cases are cited to sustain this view; but it will be observed that all such cases relate to salaries or fees of public officers. Bliss v. Lawrence, 58 N.Y., 442; Bowery Nat. Bank v. Wilson, 122 N. Y., 478, 482, 34 St. Rep., 43, and many other cases cited. But an executor is not a public officer. His office does not concern the public. Jacobs in his Law Dictionary, title Office, says that every man is a public officer who hath any duty concerning the public. Here the office is clearly a private one with which the public has no concern, and no question of public policy is involved. Hence the cases cited by the learned counsel have no application, and the commissions accrued and to accrue seem to have been assignable.

But it appears that Harry F. Worthington was entitled to no commissions on the corpus of the estate, the value of the personalty being several hundreds of thousands of dollars, because of his removal before the completion of his duties. Matter of Hayden, 54 Hun, 197; 26 St. Rep., 911, and cases cited. It is said in the principal case that “ if, for any reason, the trustee does not perform the duty, his right to the commissions is not complete.” It can, therefore, make no difference whether he resigns, die, or be removed for cause. In either case no commissions can be allowed. So far as appeal’s, he received no income of the estate; and as there were four executors and trustees, the compensation to which three would have been entitled would have been required to be apportioned among them according to the services rendered by them respectively, he would have been entitled to no commissions on the increase. Hence the provision of the decree, here sought to be amended, is deemed to be correct.

Chas. A. Davison (W. W. Bryan, of counsel), for app’lt; W. A. Jenner, for resp’t.

Under the circumstances it becomes unnecessary to determine whether the facts stated in the petition are sufficient to warrant a modification of the decree, in the respect sought, under subdivision six of § 2481 of the Code

For the reasons alleged, the motion is denied.

Pratt, J.

This is an appeal from an order of the surrogate of Westchester county, refusing to open and amend a decree settling the accounts of the executors and trustees, filed November 4, 1891.

It is, perhaps, unnecessary to add anything to the opinion filed by the surrogate, that an issue might be raised by the representatives of the deceased executor who made the assignment whether the assignment was a valid instrument, and upon this issue the parties would be entitled to a trial by jury, which could not be had in the surrogate’s court.

It seems clear that, when the assignment was made, there were no fees or commissions on which the assignment could act.

The mode of ascertaining and fixing the commissions of executors are entirely statutory, and until they are so ascertained and fixed none are due, and in this case, by reason of the lunacy and death of Harry T. Worthington, none ever became due and payable.

The petitioner, at most, was a mere creditor of Harry T. Worthington, and his claim, if any, should be made against the estate of the said Harry. Matter of Harris, 4 Dem., 463; Wheelwright v. Rhoades, 28 Hun, 57; Freeman v. Freeman, 4 Redf., 211; Carroll v. Hughes, 5 id., 337.

It did not appear in this proceeding that said deceased executor had earned or become entitled to any fees before his death.

There is neither authority or reason for any such claim as is made by the petitioner.

Order affirmed, with costs and disbursements.

Barnard, P. J., and Dykman, J., concur.  