In re the Judicial Settlement of the Estate of Kempf

Church, S. There is no present necessity for the determination of the time at which the various estates vest under the will in question, and I shall not now consider them. The moneys paid to the executrix for the support and maintenance of the infants appear to have been all expended. The fact that in certain of her duties she has paid the moneys to> the estate does not justify her in demanding they should be repaid to her. The arrangement that the executor, in carrying on the business, should be paid a commission based upon the amount of the business is, perhaps, a somewhat unusual one but there is nothing showing its impropriety. The executor has evidently managed this business with rare skill, as the net value of the estate has more than doubled in his hands. He states positively that the amount which he has been paid is precisely the sum he was receiving from the deceased during her lifetime when he was managing the business. The executrix herein presumably had fair access to the books and 'an opportunity to disprove this statement, if it was untrue. As she has not done so it seems proper to assume that when the deceased permitted the executor to continue the business she meant that he should receive the same compensation for its conduct as executor as he had received from her as an employee. The commissions to the executor and the executrix will be fixed in accordance with the decision of the Court- of Appeals in Beard v. Beard, 140 N. Y. 260. Account confirmed. Decreed accordingly.