ficiaries as to the rate upon which the former's commissions are to be computed. In all such cases the statutory rate is to be disregarded.

The commissions given by the statute belong to the accounting party as a matter of right, and cannot be withheld, except in one or two special

cases.

Thus, where a trustee has paid over to the beneficiary the whole net income without making any claim to commissions, they are deemed to be waived as the income is the sole fund out of which the commissions are payable, and they cannot charge future income with past commissions. Where a will provides that the executor shall act without compensation, the acceptance of the office is an acceptance of the condition imposed and a waiver of commissions. Where executors, administrators or trustees have resigned their offices before completion of their duties, they may be deprived of their compensation, or, at least, so much thereof as is based upon the amount turned over to their successors; and where there is proof of gross mismanagement or dishonesty their entire compensation must be forfeited.

One who is appointed both executor and trustee may be entitled to full commissions in each capacity. If the plain purpose of the testator, as disclosed by the will, is that at a given time

the duties of the executor should cease and those of the trustee commence, an allowance of compensation to him as an executor does not exclude him from a like allowance as trustee. It is not necessary that an actual division of the estate into the separate trusts be made. It is enough that the functions of the two offices were intended to be kept separate and distinct.

The payment of commissions is a charge against the general estate as a part of the cost of administration, and is not a charge against, or a lien upon, the legacies or distributive shares. No commissions are to be computed upon specific legacies or devises, nor upon the widow's dower, nor upon any re-investments of principal.

121. Closing the estate.

When the decree is made which adjusts the account and directs final distribution, little else remains to be done. The representative or trustee, after withholding the costs and expenses of the proceedings and his own commissions, should promptly make the payments according to the directions of the court's decree, and take proper receipts for the same. These he may file with the court or retain as he chooses, but in the case of an administrator he should furnish to the surety on his bond proof that he has fully

complied with all requirements of the decree and thereby relieved himself from further liability.

It is perfectly competent for representatives and trustees to account directly to the legatees, next of kin and beneficiaries, without the formality of judicial settlement. In such case a release should be taken from those with whom the settlement is made, which will protect the accountant at least as against them. But if the estate is burdened with any complications, it is the better part of wisdom to have a formal settlement, to which all persons having the slightest interest therein can be made parties, and thus foreclose all future controversies, when facts are forgotten, evidence is lost and witnesses are no longer alive.

INDEX

(Figures refer to sections)