FOLEY, S.:
A question as to the allowance of commissions arises in this estate. One of the executors, Hugo Elias, died on April 24, 1921, about six years after the issuance of letters testamentary. At that time a large part of the estate had been administered and paid out to the various legatees. The allowance of compensation for commissions to deceased executors or trustees is in the discretion of the surrogate. ( Matter of Barker, 230 N.Y. 364.) The estate of the deceased representative is not entitled as of right to commissions. Accordingly I shall allow commissions on the amount actually received and paid out by the deceased executor under the rule laid down in Matter of Whipple ( 81 A.D. 589). As a matter of discretion and in view of the death of the deceased representative before the amendment to section 285 of the Surrogate's Court Act by chapter 649 of the Laws of 1923, which went into effect September 1, 1923, I shall allow commissions to his estate at the rates in force before the amendment of 1923 took effect. No commissions will be allowed any of the executors on the sum of $40,996.40 paid out of the estate funds in connection with the reorganization of the Wabash Railway Company and one of its associate companies.
Resubmit decree in corrected form with computation of commissions as herein directed.
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