In re the Judicial Settlement of the Account of Proceedings of Wanninger , 105 N.Y.S. 4 ( 1907 )

Scott, J.:

This appeal presents only the question whether or not the appellants should have included in their accounts as executors-the unsold real' estate of William B. Nelson, their decedent.

Incidentally of course this involves the' question whether or not the appellants, as executors, are entitled to commissions Upon such real estate. Section 2730 of the Code, of Civil Procedure' provides that commissions shall be paid to executors and administrators upon “ all sums of money ” received and' paid out. The construction heretofore given to this section has been that executors are not entitled to commissions, upon specific securities^ or upon unsold real estate, bequeathed in trust, in advance of their conversion into money. (McAlpine v. Potter, 126 N. Y. 285; Phoenix v. Livingston, 101 id. 451; Robertson v. de Brulatour, 188 id. 301, 316.) Without attempting a minute analysis of the provisions of the will, it will suffice to say that in our opinion' the title to the real estate never passed to the executors as such, but at once devolved upon the executors as trustees, subject to the power given to the executors to sell so' much of it as might be necessary to enable them to complete their executorial duties. Nor do we consider it necessary to determine whether or not the will intended to work an equitable conversion of the real estate into personalty. Even where such a conversion is effected we have been referred to no authority for the proposition that before actual conversion the real estate is to he considered as money for the purpose of awarding commissions to the executors.

The decree in so. far as appealed from is ■ right and ^should be affirmed, with costs to both parties appearing on the appeal; and payable out of the estate.

. Ingraham, McLaughlin, Laughlin and Clarke, JJ., concurred.

, Decree affirmed, with costs to both parties appearing on the appeal, payable out of the estate. . ;