S. J. Von Koenneritz v. Henry Ziller, 112 Tex. 126

Mb. Judge HAMILTON delivered the opinion of the Commission of Appeals,

Section B. The case is before us on a question certified to the Supreme Court as follows: “Defendant in error brought suit in the County Court of Travis County to recover certain commissions which he alleged. to be due him as co-executor of the estate of Henrietta Blau, deceased. ‘ ‘ The facts are as follows :■ “Henrietta Blau, deceased, appointed appellant and appellee independent execntors of her will, which was duly probated. Both executors qualified and returned an inventory of her estate.

Appellant was the residuary legatee of the estate. “There was on hand at the time of the death of deceased, cash $374.62, and notes of the aggregate face value of $10,310, All of this was in the hands of appellant at the time of the death of Mrs. Blau. Por some years he had been her business agent and confidential adviser, and as such had possession of her money and notes.

Soom after the will was probated, appellant refused to allow appellee to have anything to do with the administration. “The will provided that various legacies, aggregating $4,025, should be paid by the executors.' These were paid by checks drawn by the attorney of the executors on a fund placed to hip credit by appellant for that purpose. The attorney of the executors took receipts therefor, executed to both of the executors. Debts of the estate, aggregating $1,286.04, were paid in like manner.

Appellant collected debts due the estate to $844. “Payments of debts and legacies were from the following sources: Cash on hand at death of deceased............ $ 374.62 Money collected ............................. 844.00 Money borrowed by appellant.................. 3,500.00 Out of his own funds ....................... 592.42 $5,311.04 Deducting cash on hand ...................... 374.62 Leaves ..................................... $4,936.42 “This sum the Trial Court treated as money received by the executors, and found that appellee was entitled to two and one-half per cent, thereof, amounting to $123.41.

The court also allowed appellee two and one-half per cent, -on $1,286.04, money collected, to-wit: $32.15, making a total of $155.56. 11 The money borrowed by appellant was upon his individual credit, and upon collaterals furnished by him. “This suit was tried in the County Court by the court without a jury on appeal from a Justice Court. “We affirmed the judgment of the Trial Court allowing defendant in error the commissions claimed by him.

The case is now pending in this court on motion for a rehearing. “In view of the novelty as well as of the importance of the question here certified, and in view of the further fact that appellant cannot prosecute a writ of error herein, we deem it proper to certify to your Honorable Court the following question which is presented by pleadings and the evidence herein, and is material to a proper disposition hereof, to-wit: “Should defendant in error have been allowed commissions on the whole of the $4,936.42, or only on the $844, shown in the foregoing statements of facts ?

In other words, should the $3500 borrowed by plaintiff in error, and the $592.42 advanced by him, all of which was paid out on legacies and debts of the estate, be treated as money received by the executors?” In so far as Ziller is concerned, the only difference between this transaction and one which would have arisen, if the money had been received from a third person, lies in the fact that Von Koenneritz; the co-executor, supplied the money. It was deposited to the credit of the attorney of the executors for the purpose of paying debts of the estate.

Ziller became responsible, in the same degree, for the money as if it had been received from any other person. If Von Koenneritz, as residuary legatee, desired to avoid payment of commissions by the estate, he could have done so by giving bond as required in the withdrawal of estates from administration and discharging the executors. Instead of doing so, he chose to pursue a course that imposed on Ziller all the duties and responsibilities that would have arisen from the receipt- of the money from any other person.

Therefore, we recommend that the question be answered to the effect that defendant in error should be allowed commissions on the whole of the $4,936.42. By the Supreme Court The opinion of the Commission of Appeal answering certified questions is adopted and ordered certified to the Court of Civil Appeals. C. M. Cureton, Chief Justice.