Hoysradt, S.
On the settlement of the accounts of William Seigler as administrator of the estate of his mother, Mary Seigler, it is sought to charge him with the amount of a savings bank deposit which he has not included in his -account.
Mrs. Seigler, who died intestate, January 14, 1904, -was survived by her husband and eight children. Her husband died about one month later. The gross value of her personal estate, excluding the deposit in question, is $785; and, although there is evidence of her desire that William should manage her property, I have found- no indication of any intention on'her part to favor any of her children in the final distribution of her estate.
On January 7, 1902, Mrs. Seigler went to -the Hudson City Savings Institution, unaccompanied, and by her directions the officers discontinued the deposit then standing in her name, on which there was due $313.60, and opened a new- account for the same amount to the credit -of “ Mary E. or William Seigler, payable to either or survivor.” An additional deposit of $350 was made in this account June 11, 1903, and the amount due at the time of Mrs. Seigler’s death was $692.22. From the time this deposit was commenced Mrs. Seigler retained possession of the bank book continuously until her death; and it does not appear that the son, William, ever saw the book during that period or had any conversation with his mother about the deposit.
The natural presumption that this account was placed so [199]*199either the mother or son could withdraw it, for convenience, is strongly fortified by the son’s evidence. He, the son, William Seigler, has testified and reiterated: “ It was in our joint name; I suppose it was hers, that she put it there for convenience, so that we could both draw it. Q. It was her money and she put it that way for convenience so that you could draw it ? A. Yes.' Q. You made no claim to it ? A. Ho.”
In a letter written by Mary Seigler to her son William, dated January 17, 1902, she says: “ What I 'am about to ask of you is in case if I should die before my money is spent I have found there might be some trouble in collecting it so I have been to the bank and have had it fixed so you could draw it in case I am dead. I know you will do what is right with it, so I will send you the envelope and the slip of paper that they gave me and you send it to them.”
The claim of the administrator to the deposit in question must necessarily rest upon a gift inter vivos to establish his ownership ; and, with the facts stated in mind, it is very evident that the most essential elements of such a gift are lacking in this case. The rule has been frequently stated and will be found, associated with facts quite similar to those in the case at bar, in Matter of Bolin, 136 N. Y. 177, where a Mrs. Cody changed her bank account to one entitled “ Julia Cody or daughter Bridget Bolin.” The book subsequently came into the daughter’s possession, but the court held that nothing beyond the presumption of convenience arose from the transaction and that no gift was made out; The court, at page 180, says: “ There were no words of •gift and the holding of the pass book was consistent with a mere custody or agency. The law never presumes a gift. To constitute a valid gift there must have been the intent to give and a delivery of the thing. The evidence must show that the donor intended to divest herself of the possession of her property and it should be inconsistent with any other intention or purpose.”
This rule is elaborated in Beaver v. Beaver, 117 N. Y. 421, [200]*200particularly on the question of what constitutes a delivery, which the court says may be either actual or symbolical, that is, by actually transferring the manual custody of the chattel to the donee or giving to him the symbol which represents possession. In this case the deposit was placed in the name of a father and son. The father retained the book and there was no evidence> as in the case at bar, of an intention by the parent to part with ownership, and it was held that no gift was established. The same reasoning is followed in De Puy v. Stevens, 37 App. Div. 289, where the deposit was to “ S......N or D........either or survivor to draw,” and it was there further held that an alleged gift inter vivos or causa mortis, which is not asserted until after the death of the donor, should be supported by evidence of the highest probative force. Joint tenancy and survivorship incidental thereto are not favored in law or equity and never when any other deduction can be made.
I am unable to distinguish the essential facts in the ease under consideration from those in Kelly v. Home Savings Bank, 44 Mise. Rep. 102, where a mother caused her savings-bank deposit to be placed in the name of herself and her daughter so that either could draw it, the mother retaining possession of the book; and Judge Herrick held that, although the mother intended that the daughter should have the deposit at her death, there was no absolute gift of the deposit and no irrevocable ter nunciation by the mother of all her interest and no creation of joint tenancy or survivorship.
In Hallenbeck v. Hallenbeck, 44 Misc. Rep. 109, a deposit was made in the name of “ Huldah Van Aernan or Huldah B. Hallenbeck pay to either or survivor of either.” They were aunt and niece. There were full instructions to the treasurer of the bank to permit either to draw and the niece did make two withdrawals in the lifetime of the aunt. The facts showed that the original owner never surrendered dominion or control over the deposit. She kept the pass book, only permitting the niece [201]*201to take it to make the withdrawals, and it was held that the gift, was not completed under authority of Beaver v. Beaver, and Kelly v. Home Savings Bank, supra.
The same ruling is to be found in Wood v. Zornstorff, 59 App. Div. 538.
In Farrelly v. Emigrant Industrial Savings Bank, 89 N. Y. 425, the donor in her lifetime delivered her bank-book, entitled “ Margaret or son Frank J.,” to her sister, with instructions. to deliver it to the son, ¡showing an intention to divest herself of ownership; but his delivery and declaration distinguished, this clearly from the case at bar. It is also to be readily distinguished from Mack v. Mech. Bank, 50 Hun, 477, where the-book was delivered by the donor to the donee with the declaration, “ This is yours.”
The only inclination to swerve from the well-established rules. in these cases is shown in several decisions involving deposits made by husband and wife and usually accompanied with the. statement that the proof of intent to make a gift was found satisfactory (McElroy v. Nat. Savings Bank, 8 App. Div. 192; Matter of Finn, 44 Misc. Rep. 622; Matter of Meehan, 59 App. Div. 156), although, on 'the principles involved, these-cases appear to conflict with Matter of Ward, 51 How. Pr. 318,. and Brown v. Brown, 23 Barb. 565.
I have found the line of decisions in other States quite in accord with those cited.
Where a depositor, accompanied by his sister, went to the-bank and had his deposit made payable to himself and his sister, and their survivor, subject to the order of either, held not a-, gift. Taylor v. Henry, 48 Md. 550.
By a deposit in the joint name of himself and his child, merely for the convenience of the parent in drawing money, a determination to make a gift is not shown merely by facts-that the account was permitted to remain in the joint names; and the parent made loose declarations indicating a gift. Skill-[202]*202man v. Wiegand, 54 R. J. Eq. 198; Norway Sav. Bank v. Merriam, 88 Maine, 146; Noyes v. Inst. for Savings, 164 Mass. 583, to the same effect.
The evidence in the case under consideration clearly shows that Mrs. Seigler never intended to dispose of this bank account in her lifetime. If we sensibly construe her. own words, ■she intended nothing more that that, if any of it remained at her death, then William should do what was right with it toward the natural objects of her bounty. The operation of the law will now, I think, carry .that intention into effect, as none of the requisites of a valid gift seem to be present in this case.
The administrator will, therefore, be charged, in addition to the amount stated in this account, with $692.22, with interest from January 1, 1904.
Another objection to an item of fifty dollars with which the administrator credits himself, for work in looking after personal property of the estate and for loss of time from his usual occupation, seems to be well taken. His commissions are full legal compensation for such service, and this item will be disallowed. With the exe'ctpoin of these two items, to be adjusted, and the payment of George Wood’s bill of fifteen dollars for ■services and stenographer’s bill of eleven dollars and seventy-five cents, the account will be allowed as presented.
I have concluded that the administrator’s counsel has been sufficiently paid for his services to the estate. The services which he and his associate have rendered in aiding the administrator to establish his individual claim against the estate cannot be paid for out of the assets, and the same is true as to the disbursements incurred in the same effort. The estate cannot be madé'to pay for successfully defending the claim.
The special guardian and counsel for Helen Miller, who have, in effect, represented the estate upon the litigated questions on this accounting, are each entitled to fifty dollars costs, payable «out of the estate.
Decreed accordingly.
[203]*203NOTE ON COMPENSATION OF EXECUTORS.
IN GENERAL.
An executor cannot equitably exact a consideration from persons interested in the estate for doing what it was his duty to do as executor. "Slater v. Slater, 26 Mise. 332.
"PROVISIONS CONTAINED IN WILL.
Paragraph 2730 Code Civ. Pro. provides that where a will states a •specific compensation for an executor, he is not entitled to the statutory •compensation unless he files with the surrogate a renunciation of the specified compensation, held, that the delay of the executor for two and •one-half years in filing such renunciation is not such laches as will deprive the executor of the benefit thereof. Matter of Arkenburgh, 28 App. Div. 473.
If an executor renounces the compensation provided by the will the surrogate may allow him commissions as if the will had made no provision for his compensation. Matter of Arkenburgh, 38 App. Div. 473.
If the will gives the executor a sum over and above his commissions •and expenses he is entitled to the same in addition to the latter. Matter of Sprague, 46 Misc. 216.
A testator bequeathed a sum of money to an executor and trustee to be by him received in full of all commissions, personal expenses, disbursements and charges of every kind relating to the full and final settlement of the estate, which was accepted by him. Held, this precludes him from commissions in either capacity. Matter of Rowe, 42 Misc. 172.
Where a former manager of the business of a decedent was appointed •one of two administrators to carry on the business, and he carries it on alone, he is entitled to his régular salary, upon his accounting, as well as to his commissions. Matter of Moriarity, 27 Misc. 161.
SAME—FOR WHAT SERVICES ALLOWABLE.
In the preparation of the account the executor of a deceased testamentary trustee merely performs one of the duties which devolved upon the estate of the testator, for the performance of which duty the statutory commissions must be deemed adequate compensation, to him, though he may be allowed for this necessary services of an accountant for which he has paid. Harrison v. McAdam 38 Misc. 18.
Where the executor was co-partner of the decedent and the testator by his will provided for continuing his business after death by his .executor •and made no provision therein for additional compensation, he cannot be [204]*204credited on Ms accounting with compensation for his services as liquidating partner nor for continuing the business, other than his partnership,, interest and share in the profits. Matter of Dummett, 38 Mise. 477.
COMMISSIONS GENERALLY.
Code Civ. Pro., par. 2730, provides that the surrogate “must” upon the accounting of an executor allow him commissions, held, note to deprive the surrogate of power to withhold commissions when the executor has not faithfully rendered the required services to the estate. Matter of Rutledge, 162 N. Y. 31.
A resident of England died leaving personal property of a vast amount in the city of New York. The plaintiff and defendants were appointed executors and the plaintiff agreed to the renunciation of his right to probate the will, both in England and in New York on consideration that the defendants pay him .his share of such commissions and remuneration as the executors should be entitled to. The law of England allowed' nothing to executors and the defendants never probated the will in New York.
In an action by the plaintiff to recover his share of the commissions, it was held that no commissions had ever accrued, that the State of New York would not allow an executor a commission until the will was probated, letters testamentary issued, and an account rendered, that as the defendants had never probated the will, the plaintiff was not entitled to-any remuneration at all; that moreover the contract was void and illegal, in that an executor could not for a consideration, dispose of his right to-act as executor. Oakeshott v. Smith, 104 App. Div. 384.
The allowance of commissions to an executor is a matter to be determined by the surrogate, and an executor has neither the power nor the-right to say or reserve the same to himself until they had been ascertained and allowed in the matter provided by statute. Matter of Furniss, 86 App. Div. 96.
While it is the duty of the executors of a trust estate to distribute-the personal property among the residuary legatees, it is impossible to do-it at once, and they have a reasonable time in which to accomplish it; and if, in the paying of taxes and expenses, they are compelled to hold and disburse the moneys of the estate there is no reason why they were not entitled to commissions for so doing. Matter of Prentice, 25 App. Div. 209.
Under the provisions of Code Civ. Pro., par. 273 and 280-2, there is no -power to deny commissions to executors and testamentary trustees-except for misconduct on their part. Matter of Curtiss, 9 App. Div. 285.
The legal title and the power of sale of real estate was given- to executors, but it was evidently, the intention of .the testator that they should [205]*205exercise such power only for the purposes of a trust conferred upon them, and to be exercised by them as executors only for the payment of debts. Held, commissions were allowable in their capacity as trusteesi only, and where they had applied for leave to resign as trustees they could receive no commissions as trustees on the proceeds of realty sold. Matter of Curtiss, 9 App. Div. 285.
Where a testator, by his will, gave to his wife the income from his property for life and at her death to be divided among certain legatees, and the widow used the property as her own, mingled the estate’s money with her own and kept no accounts as executrix, neither she nor her executor, after her death, will be allowed any commissions for the original estate. Matter of Matthewson, 8 N. Y. Supp. 140.
As administrator, in order to become entitled to commissions, must not only collect moneys owing to the estates but pay it out as well. Matter of Bidgood, 36 Misc. 516, 2 Mills Surr. 407.
SAME—FOB WHAT SERVICES ALLOWED.
Where securities are devised in definite proportions and their value is unequal making it impossible to' divide as directed, they may be sold and the executor is entitled to commissions for selling and distributing the proceeds, such commissions to be charged proportionately upon the securities and not upon the residuary estate alone. Matter of Fisher, 93 App. Div. 186.
An executor is not entitled to commissions for making delivery of a specific thing bequeathed. Matter of Fisher, 93 App. Div. 186.
Commissions on a specific legacy of shares of stock are not allowable to executors. Matter of Whipple, 81 App. Div. 186.
A personal representative of a deceased executor can be allowed commissions only on money received and paid out during the executor’s life. Matter of Whipple, 81 App. Div. 389.
No commissions should be allowed to the executor of a deceased trustee for services rendered in regard to the compromise of a devastavit committed by the deceased trustee. Matter of Welling, 51 App. Div. 355.
Executors are net entitled to an allowance for services in regard to the real estate left by a decedent, where they were performed, in the discharge of their duty as executors. Matter of Hosford, 27 App. Div. 427.
A testator bequeathed all his residuary estate to his executors in trust “ to convert into money at such time as in their discretion may seem most advantageous,” and directed the payment of certain annuities out of the income, and after the death of the widow, to “ divide, distribute and pay over ” all the residue to certain persons, and also gave the executors the power to sell, mortgage and lease real estate at such times as they should deem proper. Held, that the power of sale by the execu[206]*206tors was unqualified as to time, and did not cease upon the death of the-widow, and when they make a sale of realty for the purposes of distribution, they are entitled to commissions therefor. Matter of Prentice, 25 App. Div. 209.
Executors who are also trustees who elect to transfer securities to themselves as trustees, are entitled to commissions on their value which may be determined by the inventory if not otherwise fixed. Matter of Curtiss, 9 App. Div. 285.
Where the same persons are appointed executors and trustees under a. will disposing of real and personal estate and there is no mandatory power of sale of the realty given to the executors, they are not, when- accounting as such, entitled to commissions on the value of the real estate Unsold. Matter of McGlynn, 41 Misc. 156, 3 Mills Surr. 600.
No commission can be allowed for the payment of a specific legacy. Matter of Robinson, 37 Misc. 336.
Executors having a discretionary power to sell land, which they never exercise, will not be allowed commissions on the value thereof on surrendering it to the residuary devisees in confirmation of a partition agreed upon between the latter. Matter of Ross, 33 Misc. 163, 2 Mills Surr. 58.
Where upon a foreclosure of a mortgage held by a testator at the time of his death, the executor buys in the land covered thereby he is entitled' to commissions on the value of the land, which represents the original assets. Matter of Ross, 33 Misc. 163.
An executor is entitled to commissions on the values of personal assets-received by him and never converted into cash, but delivered by him to a legatee in the form in which they were received and the legatee accepts-the same. Matter of Ross, 33 Misc. 163.
Where a trust was created by will and the life beneficiary' died before-the formation of the trust, the amount of said trust not having been paid over by the executors to themselves as trustees, commissions as trustees will not be allowed them on that fund. Matter of Irwin, 29 MisC. 266, 1 Mills Surr. 279.
Where executors are made trustees of a residuary estate, consisting of' realty, etc., with remainders over and have not sold the realty and where the fee was never in the trustees but given directly to the remaindermen, commissions will be refused. Matter of Tucker, 29 Misc. 728, 1 Mills Surr. 371.
Executors of an estate foreclosed a mortgage on realty and divided it. into lots, some of which were conveyed to legatees and accepted as payment of so much of their respective shares in testator’s residuary estate. Held,.. commissions on the proceeds of the sales should be allowed the executors. Matter of Franklin, 26 Misc. 107, 1 Mills Surr. 7.
[207]*207AMOUNT, BATE AND HOW COMPUTED.
A testator by Ms will appointed Ms executors trustees of the residue-of Ms estate, out of which he created four separate trusts. The estate as. a whole amounted to $1,000,000 but none of the separate trusts amounted to that sum, held, that the executors, as such, were entitled to full commissions under Code Civ. Pro. par. 2730 as the estate amounted to over $1,000,000. Matter of Johnson, 170 N. Y. 139.
Where it appears from the record that the work of the two executors, apart from formal acts -was performed by an accountant and attorneys who have been liberally paid out of the estate therefor, one executor should, not, under par. 2730, Code Civ. Pro., be awarded all the commissions where it further appeared the other shared in the responsibility of the office and the work connected therewith. Matter of Arnton, 106 App. Div. 326.
An executor should not, in the absence of a charge or proof of misconduct or improper management of the estate, be allowed only half commissions. Matter of Dutcher, 102 App. Div. 410.
Commissions to executors may not be made upon the basis of the inventory of the estate but only for actual service in receiving and disbursing moneys of the estate. Matter of Whipple, 81 App. Div. 589.
Where an executor, upon his own motion, is discharged before the completion of his trust, the surrogate may allow him only one-half of the-regular commissions. Matter of Douglas, 60 App. Div. 64.
Trustees cannot, by making semi-annual payments of the income and deducting commissions therefrom, increase their commissions in any year to exceed the whole year rates for their services. The commissions must be based on the income for a whole year. Matter of Mitchell, 41 Misc. 603.
COMMISSIONS TO ONE ACTING IN DUAL CAPACITY.
Where a will imposed double duties upon a trust company, namely, those of executor, and after the period of administration had passed, those of a trustee, and the trust company was discharged as executor and then commenced to act as trustee, the trust company was entitled to full commissions in each capacity. Matter of Union Trust Co., 70 App. Div. 5.
An executor who has not separated his duties as trustee from those as executor is not entitled to double commissions. Matter of Hogarty, 62 App. Div. 79.
Where trustees are also executors of an estate and the court allows them to resign as trustees, commissions as executors may he allowed them where they have fully performed their duties as such but commissions as trustees will be denied. Matter of Curtiss, 9 App. Div. 285.
A will, after bequeathing certain personalty, devised and bequeathed the [208]*208.residue of the estate to the executors in trust, to apply the income and -any part of the principal necessary to the support of the testatrix’s husband. The executors were directed, after the husband’s death, to- sell .and dispose of the realty and personalty and, until a sale, to lease, collect the rents, repair, rebuild or mortgage, and to carry on any business in which the testatrix was engaged at the time of her death, until the same ■could be advantageously sold. The proceeds of the residuary estate were .to be paid over by the executors to various legatees. After the husband’s death, the executors filed a petition for a judicial settlement of their •accounts as executors. They never kept their accounts as trustees, and ¡there was no mention in the petition that the parties accounting had acted as testamentary trustees, or that as accounting in that capacity would be asked for, held, that the parties accounting were not entitled to ¡to commissions under both par. 2730, Code Civ. Pro., as executors, and '.par. 2802, as testamentary trustees, but as executors only. Matter of Clinton, 12 App. Div. 132.
A trust duty may thus be imposed upon the executor, which thereby becomes and is made a function of his office, but a will must go further "than that to admit of double commissions, and must clearly and definitely 'indicate an intention of the testator to end the executor’s duty at some ;point of time, and require him thereupon to constitute and set up one or "more trusts, to be held and managed as such for the interest of the beneficiary. Matter of Clinton, 21 App. Div. 132.
The sixth clause of the testator’s will gave, devised and- bequeathed to his executors, all the rest, residue and remainder of his estate, both real ¡and personal, in trust to pay to his wife the sum of $10,000 annually, •during her life. Held, that when the executors performed the duties under the first five clauses of the will they then became trustees, which entitled them to commissions as trustees, and such right was not affected -by the testator allowing them to retain as -trustees the original securities which came into their hands as executors. Matter of Carth, 10 App. Div. 100.
A provision of a will giving the residuary estate to the executors in trust for the wife and children, creates a valid trust so that the executors -are entitled to commissions, both as executors- and trustees, for handling 'such estate. Matter of Curtiss, 9 App. Div. 285.
In order to justify the allowance of double commissions, the will must clearly separate the duties of executrix and trustee, in point of time or method of procedure. Matter of Hitchins, 39 Misc. 767, 3 Mills Surr. 438.
Where executors are also trustees and the two positions are- distinct they may be allowed double commissions, but -they must first account as "trustees before commissions can be paid them as such. Matter of Tucker, 29 Misc. 728, 1 Mills Surr. 371.
[209]*209WAIVER, or RIGHT TO COMMISSIONS.
The failure of executors to insist upon retaining sufficient funds, on their accounting, to pay at once the commissions awarded them by the surrogates decree, does not amount to a waiver of the right to commissions. Matter of Prentice, 25 App. Div. 209.
CO-EXECUTORS.
One of the four executors of a will did not join in a petition for an accounting, being absent, but was made a party, and the accounting settled the entire estate. One full commission was allowed to each of two of the executors, one-half of one commission to the third, and one-half of one commission was reserved for the one not petitioning, to await an accounting by her.' This executor performed services of the same nature as the one receiving one-half of one 'commission. Held, that the accounting was final, and the surrogate should have directed payment of the amount reserved for the fourth executor. Matter of Meyer, 95 App. Div. 443, 81 N. Y. 562
Where more than one executor was appointed in the settlement of an estate, and at the time of accounting, only one survives, only one allowance of commissions will be made, and that to the surviving executor, although the court may, in the exercise of its sound discretion, allow compensation to the representatives of the deceased executors, for their services. Matter of McCormick, 46 Misc. 386, 4 Mills Surr. 507.
FORFEITURE.
Commissions will not be allowed to an executor whose administration has been characterized by negligence or unfaithfulness. Matter of Scudder, 21 Misc. 179.
A surrogate may, in his discretion, deny an executor the statutory commissions, notwithstanding the requirements of the code, and the exercise of such discretion is reviewable by the Appellate Division. Matter of Gall, 107 App. Div. 310.
Held not deprived of his commissions, simply because of his discourtesy in failing to answer a letter from the cestui que trust, and because he omitted to seek a judicial construction of the will. Matter of Ingersoll, 95 App. Div. 211.
Entitled to commissions where his failure to sue upon a note results in no loss to the estate, by reason of same being charged to him. Matter of Baker, 72 App. Div. 211, aff’d 172 N. Y. 617.
Held not deprived of commissions, where it appears that executor took no part in fraud perpetrated by co-executor. Matter of Dougherty, 43 Misc. 468.
[210]*210Should be denied commissions where estate’s money was used in specr ulating in claims against the estate, latter being purchased for less than, their face value, and charged up against the estate at their full value.. Matter of Rainforth, 40 Misc. 609.
Should not be refused commissions because of squandering of the estate, although chargeable therewith, where it appears that executor received' money from testatrix the day before and placed it in bank to his own credit, though claiming no gift between the date of the death and the proving of the will. Matter" of Brintnall, 40 Misc. 67.