In re Depew

¶1The question here to be considered is in regard to the amount of the commissions, to which the present executor is entitled, on this accounting. There seems to be no statutory provision directly affecting it. Full commissions are allowable to a temporary administrator, where he does riot subsequently become'the administrator in chief, or the executor of a will, pending a contest over which, he is appointed such temporary administrator (Code, *56§ 2738). So, too, if a sole executor die leaving some portion of the estate unadministered, and an administrator with the will annexed be appointed, the latter will be entitled to full commissions on the portions coming into his hands as such; and the same principle governs in the case of an administrator de bonis non. I think it applies with equals force to an executor, one of two or more named in a will, who does not act or qualify until after the death of one who did so qualify and act. He, in effect, is the successor, and takes up the estate where his predecessor left it, just as does the administrator in chief, de bonis non, or with the will annexed, as above stated, and is entitled to commissions in like manner. The decree in this matter will, therefore, award full commissions to the present executor on the sum received and paid out, and half-commissions, only, on the amount received and not paid out.