#### Matter of the Accounting of the Temporary Administrator of John Moriarity, Deceased.

(Surrogate’s Court, New York County,

April, 1899.)

Executors and administrators —Temporary administrator allowed compensation for carrying on the intestate’s business.

A former manager of a decedent, who was 'appointed by consent as one of two temporary administrators who were directed by the court temporarily to carry on the decedent’s business and who himself conducted it alone and as before for a period of about nine months, is entitled upon his accounting before the surrogate to be paid his former rate of salary in addition to his commissions.

Motion to confirm referee’s report. Facts appear in the opinion.

John F. Clark, for temporary administrator and claimant.

Townsend .& Mahan (Charles Donohue, of counsel), for executors.

*162Varnum, S.

Motion..to confirm referee’s report. Matter heard by Judge Arnold, but not decided by him. The decedent was- in his lifetime in the furniture business and had as his manager in said business one McConville, 'to whom he paid a salary of $83 per week. Decedent’s will was contested, and after considerable controversy as to who should be appointed as temporary administrator, all parties consented and agreed, as a compromise, to the . appointment of decedent’s nephew, a legatee and executor under his will;. and McConville, the manager, jointly, and an order to that effect was made by this court, providing, among other things, that the administrators should take possession of the store and stock of goods and other property used in conducting the business, and sell and dispose of the same in the usual and customary manner, that deceased did in his lifetime, and'that from the moneys received they pay rent,' insurance- and labor and necessary expenses to conduct said -business. McConville, the manager, carried on the business from August 3, Í896, until May 1,1897, when ' decedent’s will was admitted to probate and the assets were turned over to the nephew named as executor, and meanwhile paid all the customary wages of the employees, including $33 per week to himself. "When he accounted as temporary administrator, objections were filed by his coadministrator, to the effect that he had no right as administrator to receive wages from the estate for his personal services, but must be content with the commissions allowed by law. The referee overruled the objections, and exceptions were filed to his report. Despite the well-known general rule of law as to allowances to executors, etc., in excess of commissions, our courts have recognized the fact that there are certain ■ cases where the-equities are so great, and the services performed so entirely outside official duties, that the executor or administrator should be properly compensated therefor. Lent v. Howard, 89 N. Y. 169; Matter of Braunsdorf, 13 Misc. Rep. 666; S. C., 69 N. Y. St. Repr. 652; Matter of McCord, 2 App. Div. 324. This ■ seems to. me to be clearly one of such cases. An employee accepts, at the request and with the consent of all parties in interest, an appointment as temporary administrator, clearly for. the sole., purpose of carrying on the business for a time for the benefit of the persons interested in the estate, doing the same work that' he had done during the lifetime of testator, and drawing the same moderate compensation therefor. It appears that the objector, his coad"ministrator, how executor and a residuary legatee,; was frequently in the store, knew from the beginning that McConville -was draw*163ing a salary of $33 per week and made no objection thereto. The administrator was instructed by the order appointing him to conduct and carry on the business as the deceased did in his lifetime, which is exactly what he did. The case does not show that any notice was given to McConville that he must look to his commissions only for his compensation for services not 'officially rendered after his appointment, and it is reasonable to suppose that had he been warned of such a possibility he would have declined to serve as administrator and continued as an employee. The object of the general rule of law above referred to was to protect an estate from the injustice or unfairness of the executor or administrator, but in the case under consideration the estate or its representatives seem to be the ones guilty of injustice or unfairness in seeking to deprive a poor employee of his means of livelihood, although accepting, without hesitation and to their advantage, all his services so rendered. I consider that the original order of appointment was in effect, an assent that this compensation should not be limited to his commissions as administrator, and that by reason thereof and in view of the other facts above referred to, the objector is estopped from now questioning the same. The referee’s report will be confirmed. . .

Decreed accordingly: