(dissenting) :—The executor was allowed excessive commissions, but I think the decree of the surrogate is final upon that subject. It was a matter of computation, fairly within the jurisdiction of the surrogate. The executor was allowed various sums amounting to $1,065 for counsel fee, or by way of counsel fee and allowances, for caring for and managing the securities of the estate, although he had no counsel and although excessive commissions were allowed each year. Upon one accounting he did have counsel, and in addition the counsel was allowed $25, the propriety of which payment is not questioned. The commissions generally are a full compensation for the care and management of the securities of the estate and for transacting its business, and cover all services which the surrogate is permitted to allow to the executor as such. He may allow counsel fees, but that is to reimburse him for fees paid counsel, and in some cases not necessary to consider here certain other allowances may be made. But in a case of this kind the surrogate was absolutely without jurisdiction to grant to the executor any counsel fee or allowances of that nature. The executor and the surrogate both are presumed to know the law, and both are assumed to know that no allowances could be made the executor for these items. But they were made, and we are to assume that the surrogate had some foundation for his action. It appears that the executor asked the allowances. The guardian ad litem consented and they were allowed. Evidently by the request for the allowances the surrogate may have been led to believe that some services by counsel had been performed for which these allowances were to reimburse the executor. But such was not the fact. Unless the surrogate intended deliberately to violate the law and grant the infant’s money to the executor without any authority, we must assume that in some way he was overreached by the executor. When an executor obtains an allowance in his account for charges clearly unwarrantable, and which the surrogate had no juris*459diction to allow, it is, I think, a fraud within the meaning of subdivision 5 of section 382 of the Code of .Civil Procedure, in which case the Statute of Limitations begins to run at the time of the discovery of the fraud. I do not think the infant was chargeable with knowledge of the provisions of these decrees. She had the right to asssume that the executor, the surrogate and the guardian ad litem had performed their duty, and until she had actual knowledge of the fraud the statute did not run against her. I think the plaintiff is entitled to relief as to the allowances for costs and counsel fee except as to the twenty-five dollars paid the attorney.
Woodward, J., concurred.
Judgment affirmed, without costs.