¶1The plaintiff was acting well within her rights in the execution of the agreement subsequent to the death of the testator. It is clear, however’, from the agreement that it was within the contemplation of the plaintiff, the defendant, and all the heirs at law and legatees of the deceased, that the payments to be made to her should come out of the estate of the deceased. That being so, the executor was no doubt entitled to his commissions, payable out of the fund and not from the annuity.
¶2The judgment, however, is erroneous' in that it has refused to adjudge due to the plaintiff the semi-annual payment 'which was tendered on February 10, 1903; this amount is admittedly owing the plaintiff, and it was error to charge the commissions against the plaintiff.
¶3The judgment should, therefore," be modified by inserting the provision for the recovery of $178.13 by the plaintiff against the defendant, together with all commissions charged against plaintiff’s annuity, and striking out the provision relating to costs, and as so modified affirmed, without costs to either party.
¶4Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred.
¶5Judgment modified in accordance with opinion per curiam, and as so modified affirmed, without costs.