ARTHUR V. NELSON.

in some confusion on the subject, and the contestants have been unable to establish facts and figures in regard thereto, on which to found a reasonable basis of calculation; besides, some alleged balances were in the hands of agents awaiting investment, and still others were due beneficiaries, awaiting opportunities for payment.

The only remaining question, to be considered, is that relating to commissions. The will fixes the rate of five per cent. on the first $5,000, and two per cent. on all beyond that sum, for receiving and paying out, to be charged but once, by all the executors, and not by each, and to be apportioned according to the services rendered by each. The statute provides that "where any provisions shall be made by any will, for specific compensation to an executor, the same shall be deemed a full satisfaction for his services in lieu of the allowance aforesaid " (the statutory commissions) "or his share thereof; unless such executor shall, by a written instrument, to be filed with the surrogate, renounce all claim to such specific legacy" (2 R. S., 93, § 59). This, undoubtedly, confers upon the executors the privilege of electing to take the compensation provided by the statute, or that provided by the will. Election, in law, is when a man is left to his own free will to take or do one thing or another, which he pleases (Jacob's Law Dic., tille "Election"). Two of the executors filed on February 23d, 1881, with the Surrogate, written renunciations of the provisions of the will in this respect, and elected to take the compensation provided by statute. That of George P. Nelson is dated in 1878, and that of Thomas in 1881. In view of the fact that the statute fixes no time within which the renunciation shall be made, it becomes necessary to determine

ARTHUR V. NELSON.

whether it can be done at any time, however remote from the period when they entered upon the discharge of their duties. Possibly, the legislature, in adopting this provision, had in view the other provision of the statute, by which executors were authorized, and might be compelled, to account, at the expiration of eighteen months after their appointment, and contemplated the making of the election at that time. However that may be, I think the rule laid down by STORY, in his work on Eq. Juris., § 1098, is applicable in this instance. He says, "the gen eral rule is that the party is not bound to make any election" (where no time to make it is fixed) "until all the circumstances are known, and the state and condition, and value of the funds are clearly ascertained, for until so known and ascertained, it is impossible for the party to make a discriminating and deliberate choice, such as ought to bind him in reason and justice" (see, also, Chitty on Cont., 742, note; Firemans' Ins. Co. v. Lawrence, 14 Johns., 46). It is quite apparent that these executors knew all the facts and circumstances, needful to be known by them, in order to determine which would be most to their advantage, as early as when the inventory was filed, in 1870, and, most certainly, when the alleged setting apart of securities took place, on January 1st, 1872. The inventory disclosed that the value of the assets exceeded $400,000, on which the statutory commissions to the three executors would exceed $12,000, while under the will they would be less than $9,000; and the disproportion became greater as the income enlarged the amount. It was as clear to them at the last named date as it could be at any subsequent period of their administration, that their statutory compensation would be much

ARTHUR V. NELSON.

greater than that provided by the will. As soon as they ascertained that fact, it was, as I think, their duty, if they so desired, to make their election (Storring v. Borran, 55 Barb., 595). Having failed to do so then, they lost the opportunity, and are too late to make it on this proceeding. Had they rendered their account, as they should have done, at the expiration of eighteen months from the date of their letters testamentary, doubtless this question would not have arisen, and the whole matter of their accounting, now become very intricate, would have been comparatively simple. Of course, in computing the amount of commissions, the sum of the items specifically bequeathed, of bad debts uncollected, and the share conveyed and delivered to George P. Nelson, will be disregarded.

The item of $3,761.66, deducted from the share of Mrs. Arthur, being that portion of debt which the testator acknowledged himself liable to pay to Thomas Nelson as a creditor of her husband, and which he directed to be paid out of her share with interest, has been retained by him, and the executors must properly be credited therefor in the decree.

Thomas Nelson, the executor, having acted as his own counsel, is entitled to no costs (Estate of Valentine, 9 Abb., N. C., 313), but may recover his expenses in the proceeding, of which the stenographer's fees form a part. Costs are allowed to contestants out of the fund, to be taxed. The decree should be prepared in accordance with above views, and will be settled on four days' notice.

GILLIES V. KREUDER.

ROCKLAND COUNTY.-HON. OWEN T. COFFIN, SURROGATE.-January, 1883.

GILLIES V. KREUDER.

In the matter of the application of JOHN W. GILLIES, and another, for leave to issue execution against the property of CHARLES KREUDER, deceased, intestate.

An order, addressed to one individually, to show cause why he should not be punished for contempt, for disobeying a Surrogate's decree, rendered against him as an administrator, may, where the party is not misled, be amended, or the mistake may be disregarded, under Code Civ. Pro., 723, 2538.

An application, under Code Civ. Pro., § 1381, subd. 2, for leave to issue execution against a decedent's property, is an original special proceeding, commenced by petition and citation, and terminating in a decree or final order which may, in case of a contest, award costs as provided in id., § 2561.

Where the leave granted is to issue execution against decedent's real property, the provision of Code Civ. Pro., § 2552, making an order permitting a judgment creditor to issue an execution," etc., conclusive evidence of assets, is inapplicable; but if the administrator is directed to pay costs, which he omits to do, he is guilty of disobedience to a decree directing the payment of money,-which is conclusive evidence of assets, under that section,—and he is amenable to commitment. An administrator, in such a case, by alleging that he has no assets of the estate, shows no cause why he should not be punished for disobedience; for non constat that he has not squandered the same. Code Civ. Pro., § 15, does not protect him from arrest for non-payment of such costs. As to what questions may be tried by the Surrogate's court, upon a petition for leave to issue execution against a decedent's property, under the provision of Code Civ. Pro., § 1381, subd. 2, that, upon the return of a citation, the Surrogate "must make such a decree in the premises as justice requires," quære.

THIS matter came before the Surrogate of Westchester county, under the provisions of § 2485 of the Code. The application was made under § 1380, for a decree granting

GILLIES V. KREUDER.

leave to issue execution against the real property of the decedent. All the proper parties were brought in by process, and, after a contest, a decree was made granting the leave prayed for, with costs to be paid by the administratrix.

On proof of service of a copy of the decree, and of demand and refusal to pay, an order was made directing "Augusta Kreuder," not as administratrix, to show cause why she should not obey the decree and pay said costs, or be punished for her refusal. The costs directed to be paid to the petitioners were fifty dollars, and ten dollars to the guardian ad litem for an infant. When the parties appeared, it was first objected, by counsel for Mrs. Kreuder, that the order should have been addressed to her as administratrix, and not individually. Without waiving the objection, he then filed an affidavit with a view of showing cause why she should not pay the costs; the most material and important reason being that she had no assets of the estate. The petitioner then presented a certified copy of the inventory filed by the administratrix, which disclosed assets to the amount of $1,400.

WM. MCCAULEY, JR., for petitioners.

SETHI B. COLE, for administratrix.

THE SURROGATE.-The objection taken on behalf of the administratrix is quite technical. The order to show cause is entitled in the original proceeding, and the order itself refers to the decree made therein, a copy of which had been served upon her, so that she could not have been misled. I think the order may, under the provisions of $ 723 of the Code made applicable to Surrogates' courts by § 2538, be amended, or the mistake be disregarded.