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be valid as a power, and the lands shall descend to the heirs, or pass to the devisees of the testator subject to the execution of the power." 1 Rev. St. p. 729, § 56. Thus it appears that the lands of this testator passed to his widow for her lifetime, and the title immediately became vested and remained in her until her death, and no one but her was entitled to the possession of the same, or could lawfully receive the rents or profits therefrom. Clift v. Moses, 116 N. Y. 144--152, 22 N. E. Rep. 393. "There does not appear to be any question but that an heir at law or a devisee under a will, where there is no charge upon the real estate, or where the real estate is not converted into personalty, is entitled, as against the personal representatives or creditors of the deceased, to receive and retain as his own the rents and profits arising from the realty until the same is sold for the payment of debts." Clift v. Moses, supra, and cases there cited.

The counsel for the executors urge that the evidence shows that the parties interested in the estate acquiesced in the executors receiving the rents and income of the estate, and the payment therefrom of the necessary sums to discharge the current expenses imposed upon the properties, and the balance thereof to the widow; and that thereby a practical construction was given to the will as imposing a trust upon the executors appertaining to the administration of the estate. Evidence was adduced tending to sustain that view, but it is insufficient to establish that proposition; and, in any event, I am of the opinion that on this accounting the provi sions of the will and the rules of law applicable to the construction of the same preclude the consideration of a practical construction that is not borne out from, and in accord with, its provisions. I doubt very much whether beneficiaries under a will can by their conduct place a construction upon a will and give to the same a different meaning from what its terms import and the law supplies, so as to make the same obligatory upon a court called upon to judicially administer the estate. Upon taking the testimony having relation to this question the court reserved the consideration of the accuracy of its rulings, and now determines that the same should stand as the same appear. The purpose of this testimony was to establish an arrangement between the executors and the widow, under which they, as executors, were to collect and disburse the income of the estate given her by the testator's will, and thus constitute the same an estate transaction, by virtue of which they should entitle themselves, as executors, to incur the usual expenditures in behalf of the estate, and to claim and receive the usual statutory commissions of executors. Practically, the rulings on these questions make little or no difference to those interested in this estate, for, if it be admitted that this income was received and disbursed by them as executors, then it follows that the income fund to which the widow alone was entitled must bear all the expenses of the administration of the same, as also the commissions of the executors, and not the principal estate. But the personal transactions and communications between the executor and the widow, sought to be elicited

on his examination in his own behalf, and claimed not to fall within the restrictive provisions of section 829 of the Code, were to be put in as evidence to establish a claim of the executor for such expenditures and commissions against this estate of the testator. The questions, therefore, called for incompetent testimony as hearsay, if offered for the purpose of binding the estate of the testator; and as incompetent, under section 829 of the Code, if it were offered to bind the estate, or those interested in the same, of the widow, Elizabeth Turfler. The executor was testifying in his own behalf as against the contestant, a person claiming and having an interest in both estates. Pope v. Allen, 90 N. Y. 298. The construction that has thus been given to the will of the testator, and which must be adopted and applied in the adjustment and settlement of the accounts of the executors herein, precludes from consideration as a part thereof all income from the estate property as a part of the estate with which the executors are chargeable, and which they were required to administer, and also all disbursements credited in the accounts as paid therefrom; and the decree herein to be entered should adjust the executors' accounts with all such receipts and payments excluded.

In the Matter of Brown, 5 Dem. Sur. 223, it was held that, where one who is executor of a will sells the testator's real property under a power conferred upon him by that instrument, personally, and not as executor, he should not include the proceeds of the sale in his official accounts; nor are the same chargeable with executorial commissions. The matter of the compensation for the services of the executors in the management of the properties during the lifetime of the widow, the collections of the income, and the payments therefrom, it seems to me, constitute an individual transaction between the executor or executors performing such service and the widow, and is a matter to be adjusted between such executor or executors, as individuals, and the personal representative of the estate of the widow. The power of attorney put in evidence as an exhibit shows that such management of the testator's property during the lifetime of the widow was a matter between her and the executor, Jacob C. Turfler, individually, and not as executor, and is a strong circumstance indicating that this income was not received and disbursed by him as executor. The true basis for the compensation of the commissions of the executors is therefore the aggregate receipts and payments, excluding all income and disbursements therefrom, and to be computed at the statutory rates. Phoe nix v. Livingston, 101 N. Y. 451--456, 5 N. E. Rep. 70. Of course, in speaking of excluding income and disbursements thereof, I have reference only to the income and payments therefrom from the death of the testator to the death of the widow.

There is, however, another question submitted for consideration touching the compensation or commissions of the executors. They claim that they are entitled to commissions on the realty as if the same had been actually sold, and the proceeds distributed in accordance with the provisions of the will. The will, as we have

seen, provides that after the death of the widow the executors shall sell all the testator's property, "real and personal, except," etc., "and to convert all stock, bonds, and other personal property into money, the same to be divided by my executors as follows; the sale of the property not to take place until after the death of the widow, and within two years thereafter." This direction is specific and mandatory upon the executors, and, when considered and construed in connection with the other items of the will providing for the distribution of the testator's estate in accordance with his intention, upon the death of the widow the same became personalty in contemplation of law, (Smith v. Buchanan, 5 Dem. Sur. 169, and cases there cited;) and the executors would be entitled to commissions thereon in the event of a sale by them and a distribution of the proceeds, (Id.;) but it seems not if the lands remained unsold, (Phoenix v. Livingston, 101 N. Y. 451, 5 N. E. Rep. 70.) The lands not having been sold would, therefore, be decisive of the matter, were it not for the fact that by a certain instrument entered into on March 15, 1886, it was agreed by and between the contestant and all parties interested in the estate, for reasons therein set forth, that the real estate should not be sold in pursuance of the provisions of the testator's will, and that George F. Turfler, Jacob C. Turfler, the two executors herein, and Francis A. Turfler, should thereafter manage said properties as trustees, and therein specifying the powers and prescribing their duties as such. It was provided by said agreement that the executors of the said George C. Turfler "may at any time after the said 1st day of June, 1886, submit their final accounts in the surrogate's court as such executors, and it shall be deemed a full and sufficient accounting on their part of and for all the said property herein referred to, and all income, rents, and profits thereof, as of any time subsequent to the 1st day of June, 1886, if they submit upon such final accounting this instrument." It was further thereby "agreed that the executors shall be, and they hereby are, except for the purpose of such final accounting, released, discharged, and wholly exonerated from any further duty or obligation of any kind respecting the said property from and after the said 1st day of June, 1886." "And for the purpose of fixing the statutory compensation of the said executors respecting the said property, it is further agreed that the said property may be valued upon such final accounting at the round sum of one hundred thousand dollars, and may, for the purposes of fixing such compensation, be taken in such accounting as if it were such sum in cash." Under the same date, and as a part of the above arrangement, the said executors executed an instrument whereby they agreed, as such executors, "to and with the heirs at law and devisees of said estate, to accept the sum of $1,000, or $500 to each, in full for all commissions as executors or trustees of said estate of G. C. Turfler which we may be entitled to, or coming to us and each of us, out of the real estate owned by George C. Turfler at the time of his demise, and situated in the city and county of New York; such sum, when paid, to be a full

release of the heirs of said estate for the said real estate or the commissions we might have earned from the sale of same under said will." This arrangement seems clear and specific. It related solely to the real property, and left the remainder of the estate to be administered and disposed of by the executors in accordance with the terms of the will of the testator, and to account for the same, and to receive their commissions thereon in accordance with the usual practice, and at the rates prescribed by statute; and, so far as that portion of the estate is adjusted and settled upon this accounting, the executors' commissions must be computed and allowed accordingly.

A further question is presented, however, as to what, if any, commissions or compensation shall be awarded the executors for the disposition of the real estate. Had the executors carried out the provisions of the will by selling this real property and distributing the proceeds thereof, it would have been entirely clear that they would have been entitled to their commissions thereon at the statutory rates. This has not been done. Pursuant to the above agreement, entered into, the real estate was not sold, and the executors do not account for the same, and have not, therefore, from a strictly legal standpoint, placed themselves in a position to claim their commissions thereon according to the usual practice and legal requirements. The executors claim, however, even admitting that to be so, that the agreement entered into entitles them to the compensation therein agreed upon. Its terms are clear and explicit in favor of their claim, and it would be a gross injustice to them to permit the parties thereto and interested in the estate to now repudiate the same, and send the parties out of court without compensation. It seems that a surrogate's court has power to prevent this injustice. Paxton v. Brogan, 10 N. Y. Supp. 303, 12 N. Y. Supp. 563. It is binding upon the parties, and can this court give force and effect to the same? I shall so hold. The writings, having been acted upon, constitute an estoppel. They should not now, after the executors have relied and acted upon the same, and failed to sell the realty, and thus put themselves into the regular way to entitle themselves to demand their lawful commissions, be permitted to repudiate this agreement, and turn the executors away without compensation, upon a claim that the executors have not complied with the provisions of the will, and disposed of the proceeds of the sale thereof, so as, according to the usual practice and rules of law, to entitle them to demand their lawful commissions. Ledyard v. Bull, 119 N. Y. 62, 23 N. E. Rep. 444; Singleton v. Smith, 2 N. Y. St. Rep. 173. Again, it seems to me that the agreement may be regarded as one where an interested party has accepted specific articles or pieces of property in lieu of cash, in which instances the commissions are earned and allowable. McAlpine v. Potter, 126 N. Y. 291, 27 N. E. Rep. 475; Code Civil Proc. § 2744; Phoenix v. Livingston, 101 N. Ÿ. 451--456, 5 N. E. Rep. 70. If it be objected that, in order that this may be done, it is essential that the accounting party should set

forth and state the property in his accounts, and credit himself with payment over of the same, as if the cash had been actually received and paid over, I will permit the executors to so amend and state their accounts accordingly. That seems to be the proper rule. In re Selleck, 111 N. Y. 234, 19 N. E. Rep. 66.

For the reasons above given for holding that the parties interested in the estate, and who entered into this agreement with the executors, are estopped from repudiating the same, I determine that the executors have waived and forfeited any further compensation than that fixed by such agreement, although it may be less than the statutory allowance would have been. In re Hopkins, 32 Hun, 618. The executors claim a full rate of compensation to each, on the ground that the personal estate of the testator exceeded $100,000, and contend that, for the purpose of fixing such valuation, the real estate must be regarded as personalty. When real estate is devised to executors in trust to use and distribute the proceeds, and such sale and distribution have been actually made, the proceeds thereof will be considered personal property; and if they bring up the estate to more than $100,000, then each executor will be entitled to the full commissions provided by Code Civil Proc. $ 2736. Smith v. Buchanan, 5 Dem. Sur. 169. That seems to be a well-considered authority, and I am of the opinion that the rule there laid down is correct. That being so, each executor is entitled to full commissions on so much of the assets as exceed $100,000, unless he has lost such right by failure to convert the real estate by an actual sale. The agreement as to the commissions precludes the executors from more than they have stipulated for on the $100,000 fixed as the value of the realty. Counsel may be heard further on this question on settlement of the decree.

The executors should restate their accounts so as to exclude the items therefrom retained for commissions. Commissions are allowed only by order of court, and on the settlement of the account. Those claiming them have no authority to appropriate sums to their own use, as commissions, until they are judicially allowed. Freeman v. Freeman, 4 Redf. Sur. 211; Whitney v. Phoenix, Id. 180; Wheelwright v. Wheelwright, 2 Redf. Sur. 501; Wheelwright v. Rhoades, 28 Hun, 57; Carroll v. Hughes, 5 Redf. Sur. 337; In re Butler's Estate, (Surr.) 9 N. Y. Supp. 641; In re Willard's Estate, Id. 555--557.

As to the amount of $950, claimed as a credit for the employment of a bookkeeper, I think the evidence is sufficient, under the circumstances disclosed as to this estate and the administration thereof, to sustain the claim that it was proper and essential to employ a bookkeeper. There is no serious contention that the, services were not worth the amount charged and paid. This entire amount, however, cannot be charged to the principal estate, nor allowed the executors on this accounting. The services of the bookkeeper were rendered for the benefit of the income estate of the widow as well as the estate held by the executors, and a portion thereof should be paid by her or her estate. This sum

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