#### Twaddell’s Appeal.

1. A testator devised land to his wife in trust for herself and children, “ and after the expiration of fifteen years, if the executor thinks it may be more productive,” to be sold, a portion invested for the wife during life, and the remainder to be divided amongst the children. The executor superintended, etc., the land, and just after the fifteen years the land could have been sold for §100,000, but land raising in value the par-ties determined not to sell, and the devisees then elected to take the devise as land. *Held,*that §1000 was a proper compensation to the executor.

2. Not having sold the land the executor did not earn and could not recover *commissions*as such, but was entitled to *compensation.*

3. The power of sale to the executor rendered him accountable for the real estate to a certain extent, and brought him within the jurisdiction of the Orphans’ Court.

4. Dundas’s Appeal, 14 P. P. Smith, 325, cited.

February 9th, 1875.

Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson, and Woodward, JJ.

Appeals from the decree of the Orphans’ Court of *Phila*delphia, of January Term, 187S, No. 226, and of January-Term, 1875, No. 89.

The proceedings in this case originated under the will of John P. Twaddell, dated September 3d, 1840, and proved May 1st, 1844. The will, amongst others, contained the following provisions: “I give and bequeath to my wife Lydia B. the following property, in trust for the use of herself and of my children, Lewis Henry, George, Thomas, and Emma, my present children by her, and other of my children that I may have in future by her, and to no other pei’son or persons whatever, viz., my farm in Blockley township,-on which I now reside, supposed to contain about fifty-five acres; . . . . in fact, it is my will that everything appertaining to said farm and house at my decease should remain for her comfort and advantage to further my intentions hereafter mentioned. Also, my property on the corner of Broad and Locust streets, in the city of Philadelphia.....Now, it is my desire that my said wife Lydia B. should rent out my said property on Locust and Broad streets above mentioned, and receive the income, .... and also to reside on my farm above described, and háve it cultivated in the most advantageous manner; or, if she should wish to remove, to rent the same, .... and receive the income or proceeds of the farm.....If my said wife, Lydia B., should marry again, then she is not to have the management; .... it being my desire that my son Edward should rent apd manage the same and receive the. income, and pay unto my said wife Lydia B. one hundred dollars yearly out of said income during her life, and at her decease to be divided amongst my children by her only j . . . *222and to account to them, my said children above mentioned, for the income he may receive from said estates, after deducting the payments which he may have made in conformity to the above requisitions; and after the expiration of fifteen years (or one, or two, or three years after, if the executor thinks it may be more productive', the above described farm in Blockley township, and also the property in Broad and Locust streets above mentioned, are to be sold to the best advantage, and the money to be appropriated and divided as follows: If my wife Lydia B. be still living, the sum of $2000 is to be put out at interest on bond and mortgage, and the interest of the same paid to her during her life, and after her decease the said sum is to be divided amongst my children, Lewis Henry, George, Thomas, Emma, and any other children I may have in future by my said wife Lydia B., in equal proportions, share and share alike; and the sum remaining from the sales of said farm and city property above mentioned is to be divided in equal proportions amongst my children, Lewis Henry, George, Thomas, and Emma, and any other child or children I may have in future by my said wife Lydia B., share and share alike, and for no other purpose whatever is said money to be appropriated. I givé and bequeath to my son William my farm in Birmingham township.....I give and bequeath to my son Edward my lot, and the buildings thereon, on Market or High Street, between Schuylkill Fourth and Fifth streets; . . . . and I give and bequeath to my daughter Maria, wife of Thomas Green, to my daughter Harriet, wife of Augustus Jones, and to my daughter Ellen, wife of Lewis Willard, my two lots in West Philadelphia, on Market or High street, .... as the joint property of my said daughters, viz., Maria Green, Harriet Jones, and Ellen Willard ; and, as it cannot be divided, it must be sold, and the money divided between my said daughters in equal proportions, share and share alike; . . . . and I constitute and appoint my son Edward Twaddell my executor of this my last will and testament.”

On the 2d of November, 1872, Lydia B. Twaddell, Lewis Henry Twaddell, George Twaddell, and Emma Twaddell petitioned the Orphans’ Court, setting foi’th the death of the testator in April, 1844, seized of the Blockley farm and the disposition of it by his will; that he had no other children by his wife than those named in the will, and that Thomas died intestate, unmarried, and without issue; that petitioners being all the distributees of the proceeds of sale of the above real estate by deed, dated September 5th, 1861, elected .to take the estate as land in lieu of its proceeds, and dispensed *223with its sale by the executor; that the real estate had greatly appreciated in value, and the petitioners had sold and conveyed portions of it, and contracted for the sale of other portions ; that objection had been raised to their power to make a clear title in fee simple, on the ground that by reason of the power of sale in the will, the executor had an outstanding legal title to the real estate, and he claimed that he had such title and was accountable for the said real estate. The prayer was that the executor might be ordered to release and confirm to the petitioners such title as he might have in said real estate, etc.

The executor’s answer averred that at the testator’s death, the Blockley property was worth about $28,000, and the house at Broad and Locust streets $6000, and that by the will he had the discretion to sell “ after fifteen years and two or three years after ;” that during the fifteen years the farm increased greatly in value, and upon his suggestion the family agreed that a survey should be made showing the frontage of each square; that he improved it by planting, shade trees to make it attractive; that he superintended the improvement, and announced by placard on it that the property was for sale by him; he could have sold the farm .and Locust Street property for $100,000, but his object being to promote the interests of the petitioners and they not been anxious to realize, he did not force the sale or entertain propositions that were made for the purchase ; that one of the petitioners, Lewis H. Twaddell, and the respondent consulted counsel together, and were advised that the respondent was the proper person to make title; that the same petitioner having doubt as to the opinion consulted other counsel, in whose opinion it was known the family had great confidence, and he gave a similar opinion. After-wards the family, expressing their dissatisfaction that any .one but themselves should exercise any power over the property, and not being anxious then to sell, but in order that the respondent should not lose, proposed that he should take his commission in land; to this he assented.- Upon consulting counsel, he was advised that he would be entitled to 5 per cent, commission. The family offered him two acres of a square designated; he declined to receive it, and shortly afterwards they gave him notice that they had elected to take the land, which was afterwards carried into effect- by deed of September 11th, 1861. He was advised that he had a lien on the property for his commissions, and declared that he was ready to convey the legal title as the Court should direct, submitting to the Court the question as to his compensation. He further averred that if he had sold the *224property at the time designated in the will it would have brought $100,000; three per cent, on that sum with interest would be $5000, and his discretion if then exercised could not have been interfered with by the petitioners or controlled by the Court; not exercising his discretion then resulted largely to the benefit of the petitioners. The two acres offered to him as compensation would have given him $11,000. The whole property was worth $300,000. The improvements he made added greatly to the value of the property.

He prayed the Court to determine his right in the premises.

The Court, Peirce, J., in delivering the opinion, said: . .. “ The power given to the executor in this case was 'in the nature of a discretion to determine whether at and within the time limited by the testator the land should be sold. He proceeded to exercise this power by determining that it was for the interest of the parties that the land should be sold, and he took steps to effect a sale of it. Whilst he was so engaged, the parties, by deed-poll of 6th September, 1861, elected to take the property as land. It is probable that by the exercise of the determination of the executor that the property should be sold, and, by force of the will of the testator, the land thereby became converted into personalty. But it is clear that, notwithstanding this, the parties had a right to elect to take it as land : (Burr *v.*Sims, 1 Wharton, 252; Smith *v.*Starr, 3 Wharton, 62; Shallenberger *v.*Ash-worth, 1 Casey, 152.) And they having so elected to take, the executor had no further duty to perform in respect of it. There was no title to the estate vested in him, and as the power of sale was defeated by the act of the parties' electing to take the property as land, there is nothing really in him to convey or release to the parties. But, as the Supreme Court has said that in such cases there rests a ■cloud upon the title which ‘embarrasses the right of alienation, it is deemed best to decree a conveyance by the executors to remove this cloud: Kay *v.*Scates, 1 Wright, 40.

“ The executor also prays us to determine his rights in the premises. Like every other executor, agent, or trustee called on to assume a responsibility, exercise a discretion, or perform a duty, he is entitled to such reasonable compensation as the circumstances of the case require.

“ The power given to him by the testator was one which not only required of him the exercise of judgment, but also inquiry into and acquaintance with the then present and prospective nature of the land, and the exercise of a wise and honest discrimination to have it sold. His right to compensa - tion does not depend upon whether or not the land was sold, *225but upon the faithful exercise of the power given him by the testator. If he had determined, in the exercise of this power, that the land should not be sold, he would be equally entitled to compensation. It is not to be presumed that the testator expected him to exercise this power without compensation.

“ Commissions are given as a compensation for labor and responsibility. Compensation is proportioned to the responsibility incurred and to the labor and care bestowed: McElhenny’s Appeal, 10 Wr., 349. In this case the executor not only exercised the discretion and power conferred on him by the testator, but with the consent of the parties assumed some care and oversight of the property. And although the Orphans’ Court is not the proper jurisdiction in which to seek compensation for services rendered at the instance of the parties, yet, having been brought into this Court at the suit of the petitioners, and the subject of his compensation being before the Court, we think we may look at his entire services rendered to the petitioners in respect of the estate in which they are interested and measure his cornpensation accordingly.

“ If we were to fix the compensation as a commission to be paid, we would assume the value of the estate at the time of the exercise of the power vested in him to be $100,000, the value fixed by himself, and allow him a commission of one per cent, on that sum, which is as much as would probably have been allowed to him if a sale had been made. But whether considered as a commission or not, we think the sum of $1000 will be a full and fair compensation for the services rendered by him.” ....

The Court decreed that the executor should convey all his interest in the estate and all his power and right of control of it to the petitioners, and that they pay him $1000 as compensation for his services. The executor appealed to the ¡Supreme Court, and assigned for error:

1. Decreeing that the executor should convey his interest, etc., in the estate to the petitioners.

2. Allowing him but $1000 as compensation.

The petitioners also appealed to the Supreme Court, and assigned for error, that the Court refused decree or conveyance without qualification', and directing the petitioners to pay the executor $1000 compensation.

*A. T. Freedley*and *W H. Fawle,*for the executor.

When an executor with power to sell refrains from exercising the power for the benefit of those entitled to the proceeds on their promise to pay him commission, the executor should *226not be the loser: Strunk’s Appeal, 2 Barr, 304. Two and a half per cent, is a proper commission for receipts and disbursements, besides a proper allowance for trouble: Stevenson’s Est., 4 Wharton, 104; Snyder’s Appeal, 4 P. F. Smith, 67; Skinner’s Est., 4 Phila. Rep., 189; Eshleman’s Appeal, 24 P. F. Smith, 42; Nathans *v.*Morris, 4 Wharton, 389; Duval’s Appeal, 2 Wright, 119; Robb’s Appeal, 5 Id., 45.

*J. G.*Longstreth, for petitioners.

It is often the case that an executor incurs trouble for which he receives no compensation : Mayberry’s Appeal, 9 Casey, 258; Israel Robinson’s Est., 2 Phila. Rep., 340. When investment left by testator remains unconverted the executor is not entitled to commissions on the corpus: McCauseland’s Appeal, 2 Wright, 466.

Judgment was entered in the Supreme Court, February 23d, 1875.

Per, Curiam :

The only question made by the parties in this case is upon the right of Edward Twaddell to receive commissions upon a sale of the real estate of his testator, authorized by the will to be made, but not in fact made by him. Commissions *as such*were not earned, and were not recoverable by the executor. But we cannot say that he is entitled to no compensation. A power of sale was conferred upon him, which rendered him accountable for the real estate to a certain extent, and brought him within the jurisdiction of the Orphans’ Court, under the acts of 29th March, 1832, and 16th June, 1836 : Dundas’s Appeal, 14 P. F. Smith, 325. The case comes before us on petition and answer, and the facts set out in the answer show that the executor took steps towards bringing the property to a sale, and that he deferred executing the power by a common understanding with the plaintiffs in the petition, and finally they agreed to take the land ordered to be sold in lieu of the proceeds. The answer shows clearly that the executor was entitled to some compensation, and the Orphans’ Court have allowed what, in their opinion, was just. We are not in a position, without evidence, as we are, to say the compensation allowed is too little or too great. In the manner the ease is brought before us we can do nothing but affirm the decree of the Orphans’ Court, and dismiss both appeals, and order each party to pay the costs of his and their respective appeals.

Decree accordingly.