I do not agree as to the commissions. The will gave the real estate to the children equally, and gave the executors power to sell in order to divide. They sold the store to the mortgagee for exactly the amount of the mortgage thereon and received nothing. They sold the farm for more than the mortgage and received the difference only.
If the mortgages were not made by the testator, then they were not debts to be paid by the executors. If they were, then they were to be paid by the devisees and not by the executors. (1 R. S., 749, § 4.) In neither case were the executors to pay the mortgage debts primarily.
They had no power to sell the land free from the mortgages, but could only sell the equity of redemption. And they were entitled to commissions only on what they received. In re De Peyster (4 Sandf. Ch., 511) decides nothing on this point. Cox v. Schemerhorn (25 Sup. Ct., 16) cites no authority, except In re De Peyster. The facts in Oox v. Sehemerhorn do not appear. The court say that the executors were liable for the price at which the property was sold. That would not be true in the present case. The executors did not receive and could not have received anything more than the value of the equity. Their commissions are only on what they receive and pay out. (2 R. S., m. p. 93, § 58.)
Boardman, J., concurred.*116Decree modified by allowing commissions only on tbe surplus of tbe real estate beyond the mortgages, instead of the whole value, by disallowing the value of the sheep ; otherwise affirmed without costs to either party.