KILBURN V. SEE.

with the will annexed, whose duty it is, under 2 R. S., 72, § 22, to observe and perform the will.

A legacy, as is seen, was given by it to Wm. Witherspoon, and it is the duty of an administrator with the will annexed to pay legacies. That is an executorial duty, and such administrator must discharge it. The interest of the fund is a legacy which the administrator must apply as directed by the will, but I do not think he has any discretionary power, such as the executor had, of encroaching upon the principal. The power to do that, I think, died with the executor on whom it was conferred (Beekman v. Bonsor, 23 N. Y., 298). Such seems to be the somewhat refined distinction made by the higher courts.

The trust contained in the will is a common-law trust, such as is unauthorized by our statutes of uses and trusts, and is unlike one voluntarily created or assumed by one person for the benefit of another, where both are living, and where the trust devolves on the administrator of the creator thereof, as was the case in Boone v. Citizen's Savings Bank (84 N. Y., -83). Costs, to be taxed, are allowed out of the fund.

Decreed accordingly.

HILL V. NELSON.

WESTCHESTER COUNTY.-HON. OWEN T. COFFIN, SURROGATE.-May, 1883.

HILL V. NELSON.*

In the matter of the judicial settlement of the account of THOMAS NELSON, and others, as executors of, and trustees under the will of WILLIAM NELSON, deceased.

An executor and testamentary trustee cannot receive commissions upon receipts and disbursements having only a constructive and not an actual existence.

Accordingly, where testator, in his will, recited that he had made and might continue to make advances to his children, etc., and had or might become liable to pay certain sums for them, and directed the amount of such payments, etc., to be deducted from their respective shares of his estate,

Held, that commissions must be computed upon the amount of the several shares after making the deductions provided for in the will. It seems, that the intention of the statute (2 R. S., 93, § 58) relating to an executor's commissions, and providing that the Surrogate shall allow "to him for his services, and if there be more than one, shall apportion among them, according to the services rendered by them respectively . . . for receiving and paying out all sums of money," etc., is to make the sums called commissious compensation, not for the service of receiving and paying, but for the whole service measured by a fixed standard.

Where a testator made a testamentary provision for the executors' commissions, in nearly the words of the statute, and on the accounting it appeared that various moneys had been received and paid out, it was-Held, that one executor who had rendered services, but had neither received nor disbursed money, was, nevertheless, entitled to an appropriate share of the percentage.

Testator, who left a personal estate of the value of more than $400.000, by his will, nominated three executors and trustees, T., G. and H., and fixed their commissions "at the rate of five per cent. on the first five thousand dollars, and two per cent, on the residue, or all sums above or beyond said five thousand dollars, for receiving and paying out the same, such commissions to be charged but once by all of said executors

*See Arthur v. Nelson, ante, 337.

HILL V. NELSON.

and trustees, and not by each, and to be apportioned among them ac cording to the amount of services rendered by each." Upon the ac counting, a contest arose as to the division of the commissions, amounting to over $10,000, H. claiming one third thereof, although he filed a statement in which he declared that he had neither received nor disbursed any moneys, but that his main services consisted in giving advice as to opening streets, laying out, placing and selling lots, and as to other matters, etc., etc. The account was very voluminous, containing about ten thousand items of moneys received and paid out, and giving evidence of great labor, care and responsibility, extending over a period of ten years, in investing, reinvesting, applying income, etc.. as directed in the will. T. testified that one third of his time, during this period, was devoted to the work. The time occupied by H., in his consultations, etc., had been small.

Held, that $250 would be a liberal allowance to H., for his proportion. There is no rule which deprives an executor of commissions, or diminishes the same, because of the labor or expense requisite to put his accounts into an intelligible form.

On a contest between co-executors over the division of their commissions, the stenographer's fees should be paid out of the commissions, as the question concerns the executors only; and each party's portion should bear its pro rata share.

ON the settlement of the decree in this matter, a question arose as to whether the executors were entitled to commissions on a sum amounting to about $80,000, which the beneficiaries under the will had received from the testator in his lifetime, or which he was liable to pay for them, and concerning which he provided in his will as follows:

"14th. As I have made very considerable advances to my children, and to the husbands of some of my daughters, and as I may continue to make such advances hereafter,--and have or may become liable or responsible for certain of my children or their husbands,-and as it is but just that all payments or advances thus made should be deducted out of their respective shares of my estate, or of the residue thereof, it is my will, and I do order and direct that all advances or payments to, for, or

HILL V. NELSON.

on account, and all indebtedness of either of my seven living children who are to share in the residue of my estate, or to or on account of the husbands of such of them as are daughters, or to or on account of the children of my deceased son William Rufus, which have been heretofore or shall be hereafter charged by me in my own. handwriting, or by either of them in any book of account or elsewhere, or which shall be evidenced by any bond, note, or other obligation, with such interest as may be charged and payable by such entry, memorandum, or obligation, and any and all sums of money which I may have been or be compelled to pay as surety for or on account of any of my said seven children, or the husbands of any of my daughters, or which my estate shall be in like manner compelled to pay, with the interest thereon, and all notes and obligations which I may hold at the time of my death against any of my said sons or my daughters or their husbands, be deducted and charged against the share of the residue of my estate given to or for the benefit of my said sons and daughters, respectively, by this my will, including my aforesaid granddaughters. For the purpose of determining the amount of the respective charges against my several children and grandchildren, the whole amount of the advances, debts, etc., against all of said children, including my sons-in-law and grandchildren, and interest on the same from the time of the several advances, payments of the advances, contraction of debts, etc., shall be regarded as part of my estate, and the amount and indebtedness, etc. (with interest on the same), to or against each child, including the husbands of such as are daughters, and grandchildren, shall be deducted from the

HILL V. NELSON.

respective shares given herein for their benefit respectively; the shares given for the benefit of a daughter to be charged with her husband's indebtedness, etc., to me." The executors claimed commissions on this sum, which claim was resisted by the contestants.

Another question arose as to the division of the commissions among the executors, of whom there were three, viz.: Thomas Nelson, George P. Nelson and Uriah Hill, Jr. The latter claimed one third of the commissions, which was very much more than the others were willing to allow, there being no question on the subject as between themselves. Thereupon, there being no sufficient data before it, to enable it to judge intelligently, the court proceeded to take such testimony as the parties produced, and which is summarized in the opinion. At an early stage in the proceeding, Mr. Hill filed a separate statement, in which he declared that he had neither received nor disbursed any of the funds of the estate; but that his main services consisted in giving advice and counsel in and about opening streets, laying out certain real estate into lots, placing the same in market, the sale of the same (as authorized by the wi!!), in addition to the giving such advice and counsel as became necessary, from time to time, in the interest of the estate, and the rendering and performing of such other duties and services as, by law, devolved upon him.

By the will, the commissions were fixed "at the rate of five per cent. on the first five thousand dollars, and two per cent. on the residue, or all sums above or beyond said five thousand dollars, for receiving and paying out the same, such commissions to be charged but once by all of said executors and trustees, and not by