On appeal from a decree of the Essex orphans court, as follows:

Fort, J.

This is an application to settle counsel fees and fix the commission of the executor. On the hearing the court disposed of the matter of counsel fees and fixed the sum of $500 as a reasonable compensation for the counsel of the executor, and allowed to the counsel of the heirs on this accounting the sum of $150 each.

The estate in this case, according to the account, amounted to $1,197,501.57 of personal property. The claim of the executor for commission upon other than personal property will not be considered by the court, and in disposing of the case the commissions will be determined on the basis of the amount of personal property above stated.

The one hundred and twenty-eighth and one hundred and twenty-ninth sections of the Orphans Court act (P. L. of 1898 p. 725) control the court in the matter of the disposition of this question. This statute declares that the allowance of commission to executors shall be made with reference to their actual pains, trouble and risk in settling the estate, rather than in respect to the quantum of the estate; and it is expressly enacted that the commissions to be allowed shall never exceed the rate fixed by the one hundred and twenty-ninth section; and at the end of the one hundred and twenty-ninth section this proviso occurs:

“Provided, that the commissions of executors, where the receipts exceed the sum of $50,000, shall be determined by the orphans court on the final settlements of their accounts, according to the actual services rendered, not exceeding five per centum on all sums which come into their hands.”

It will thus be seen that in estates where the amount is less than $50,000 the basis of fixing commissions is “the actual pains, trouble and risk of the executor in settling the estate,” and not upon the basis of the quantum of the estate; and in eases exceeding $50,000, the basis of determining the amount of commissions to be allowed is, to use the language of the statute, to be determined by “the actual services rendered.”

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