An irrevocable election, as I read the authorities, implies a deliberate selection between two known alternatives. After an election has been made if the apparent situation is materially changed that election may be revoked, if such revocation works no harm to other parties. In 15 Cyc. 262 (note), in speaking of this rule, the editor says: “Knowledge is not to be imputed as a matter of legal obligation, as the doctrine of election is not properly a rule of positive law, but a rule of practice in equity. ‘ In order that a person who is put to his election should be concluded by it, two things are necessary. First, a full knowledge of the nature of the inconsistent rights, and of the necessity of electing between them. Second, an intention to elect manifested, either expressly, or by acts which imply choice and acquiescence.’ Spread v. Morgan, 11 H. L. Cas. [Clark’s] 588, 615; 11 Eng. Reprint, 1461, per Lord Chelmsford.” In Story’s Equity Jurisprudence (Vol. 2 [13th ed.], § 1097) the author says: *230“ Before any presumption of an election can arise, it is necessary to show that the party acting or acquiescing, was cognizant of his rights. When this is ascertained affirmatively, it may he further necessary to consider whether the party intended an election; * * * whether he can restore the other persons affected by his claim to the same situation, as if the acts had not been performed, or the acquiescence had not existed; and, whether there has been such a lapse of time as ought to preclude the court from entering upon such inquiries, upon its general doctrine of not entertaining suits upon stale demands, or after long delays.” In section 1098 the author further says: “Questions have also arisen in Courts of Equity, as to the time when, and the circumstances under which an election may be required to he made. The general rule is that the party is not bound to make any election until all the circumstances are known, and the state, and condition and value of the funds are clearly ascertained; for, until so known and ascertained, it is impossible for the party to make a discriminating and deliberate choice, such as ought to bind him to reason and justice. If, therefore, he should make a choice in ignorance of the real state of the funds, or under a misconception of the extent of the claims on the fund elected by him, it will not he conclusive on him.” Under the rule of law as thus stated, the decision of Mr. Justice Foote (See Nester v. Nester, 68 Misc. Rep. 207) declaring certain of the trusts in the will void, presented to the executors a new state of facts, which gave to them the right to revoke their election theretofore made, and this they promptly did. Since such revocation they have done nothing inconsistent with their expressed intention to claim the commissions due under the law. Their taking of their salary prior thereto has in no way affected the interests of any other party to the contest. No action has been taken by any other person connected with the estate upon the faith of their having elected to take the salary due under the will. It is contended that under the will the executors have the power to remove one of their number for any misconduct in the execution of the duties of such executor, and that this power might have been exercised had the other executors known of the election to take the commissions provided by law. But such conduct is clearly not *231within the purview of the will as authorizing their removal as executors. It is further claimed that one of the executors was given a salary for keeping the accounts, which would not have been given to him had it been known that he had elected to take the commissions provided by law. But the duties thus performed were not executorial duties. They had the clear right to hire such services, and the money paid to this executor therefor was the exact sum which had been paid to the party who had theretofore kept the accounts.
These executors have apparently been denied the right of election for two reasons. First, because from the beginning they have drawn from the estate monthly the amounts named as their salaries under the will; and, secondly, because they have concealed from others interested in the estate the fact that they had elected to take the commissions allowed by law. The receipt of the salary allowed by the will was consistent with the fact of their election to take such salary prior to the decision of Mr. Justice Foote, which changed the situation and rights of the trustees materially. Thereafter the monthly allowance was taken not as salary, but on account of commissions, and there can he no claim that they ever intended by such acts to waive their right to legal commissions. As far as the trust funds were concerned, they were required to take out their commissions before handing over the trust income to the beneficiaries. Otherwise they would have been deemed to have waived the rights to such commissions. (Olcott v. Baldwin, 190 N. Y. 99.) The fact that instead of reckoning each month upon just what commissions were payable upon the payments made to the beneficiaries, they took from the funds the amount provided by the will, prejudiced no one and may he fully compensated, if need be, by charging interest upon the amounts improperly taken at that time. Confessedly, the moneys that have been drawn from the estate are very much less than the commissions allowed by law. The fact that these trustees concealed from others interested in the estate that they had made their election to take the commissions allowed by law, is in no sense a legal fraud, nor, in my judgment, are these executors subject to the criticism in the prevailing opinion for having committed any ethical wrong. They were working harmoniously *232in connection with the other executors in caring for the estate which had been intrusted to them. They well knew if others interested in the estate became aware that they intended to claim their legal rights that there would be hard feeling and friction in all their subsequent business relations. There was no legal requirement that they should give personal notice to the other beneficiaries of their election. Their concealment of •this fact could work no harm to the other beneficiaries, and at most it was a question of ethics rather than of law whether they should at once openly have proclaimed their intention, or remained silent for the sake of harmony. I can find no legal reason, therefore, for denying to these executors and trustees the right to revoke the election they first made to take the salary after the radical change in the situation made by the decision of Mr. Justice Foote, and I can find no act since such revocation which would forfeit to them the right to their full legal commissions.
Were this question res nova, I should concur in the result reached in the prevailing opinion, on the ground that under the will of the testator these trustees were entitled to no greater compensation than that allowed thereunder. The decision of the Second Department in Matter of Arkenburgh (38 App. Div. 473), though made by an able court, is not convincing. Under that decision a testator may deny to his executors any compensation, and if they act they can receive no compensation, because they have been denied the same in the will. If, however, a testator provides in his will that an executor may have $100 for his services and no more, the executor may elect to take the full commissions allowed by law, notwithstanding the prohibition in the will. This, to my mind, presents a legal paradox so absurd that such construction should not be permitted. If under section 2730 of the Code of Civil Procedure (as amd. by Laws of 1905, chap. 328), which is now section 2753 of the Code of Civil Procedure (as amd. by Laws of 1914, chap. 443), the right to the election is given to the executor, where there be no words of limitation in the will, the section as thus construed is logical and perhaps reasonable. Where, however, the will prescribes a definite limit to the compensation which they shall receive, that limit should, in my *233judgment, govern with like force as if the testator has required the executors to act without compensation. Notwithstanding these views, it is perhaps more seemly to follow the decision of the Second Department, until the law shall be otherwise declared by the court of last resort.
I, therefore, vote for a reversal of the decree in the matter complained of by the appellants.
Woodward, J., concurred, except as to the views expressed in reference to the case of Matter of Arkenburgh (38 App. Div. 473).
Decree affirmed, with costs.