estate, but if he is charged interest so that the heirs are compensated, commissions may be allowed.53 Yet if the duty is imposed upon the representative to invest certain funds and he neglects so to do, it is said that commissions may be denied.54 55 Commissions will not be denied merely because of the improper manner in which an account is presented and from which the inference might be drawn that the representative had the purpose of obtaining commissions to which he was not entitled, he not having been guilty of fraud or mismanagement in connection with his administration of the estate. But where an executor neglects for years to file an account and then files one only when compelled so to do, and the account is improperly stated, entailing great labor upon the interested parties and the court, and the facts show that the executor has made illegal investments and has generally neglected and mismanaged the affairs of the estate so that the beneficiaries have suffered thereby, he is not entitled to any compensation, even though there was no intentional wrongdoing on his part.56 Commissions are allowed as compensation for 53 Frost v. Denman, 41 N. J. Eq. 47, 2 Atl. 926. 54 Warbass v. Armstrong, 10 N. J. Eq. 263; Frey v. Demarest, 17 N. J. Eq. 71. Sanderson's But compare: 55 In re Dutcher, 102 App. Div. (N. Y.) 410, 92 N. Y. Supp. 418. 56 In re Hart's Estate (Appeal of Burton), 203 Pa. St. 496, 53 Atl. 370. To the same effect see Appeal of Norris, 71 Pa. St. 106. If executors illegally, but presuming to act under the provisions of the will, incorporate the estate and receive commissions and compensation from the corporation, in a suit in equity to devest the corporation of the property and to vest it in the beneficiaries under the will and to secure an accounting, the executors will be charged for all commissions and compensation which they have received from the corporation. Garesche v. Levering Inv. Co., 146 the faithful discharge of duty, and if the personal representative has been lacking in care, prudence and good faith in the management of the affairs of the estate and his conduct has led to confusion and thrown the estate into expensive litigation, compensation should be denied him.57 Mo. 436, 46 L. R. A. 232, 48 S. W. 653. "Where there is no evidence of a proper attention to the duties of a trust, where no account has been settled for thirty years, and then only when a settlement was compelled by law, and where a very unfair exhibit was made when the account was presented, no com pensation ought to be allowed to the executrix. Nor would it be just to charge the remaindermen with the fees paid to professional gentlemen to dispute their rights and to advance the interests of the accountant." — Holman's Appeal, 24 Pa. St. 174. 57 Fluck v. Lake, 54 N. J. Eq. 638, 35 Atl. 643. CHAPTER LXIIL. DISTRIBUTION. §1595. Distributees determined according to will of decedent or statute of distribution. §1596. Partial and final distribution distinguished: Time for distribution. § 1597. Division of estate without a decree of distribution. §1598. As to rights and liabilities where executor pays legacies thereafter declared invalid. §1599. As to rights and liabilities where executor overpays a legatee: Refund. § 1600. Manner in which executor may enforce a refund from an overpaid legatee. § 1601. Right of one legatee where another has been overpaid. § 1602. Rights of creditors where beneficiaries have been over paid. § 1603. Powers of probate court as to construing wills or trying title to property. § 1604. Proceedings to determine heirship. § 1605. Distribution should be ordered only after notice to interested parties. §1606. Decree of distribution should designate the distributees and the property each is to receive. § 1607. Where a distributee dies prior to distribution. § 1608. Distribution should be in kind, if practicable. § 1609. Persons and matters concluded by the decree of distribution. §1610. Effect of receipt for property. §1595. Distributees Determined According to Will of Decedent or Statute of Distribution. The purpose of administration, as has been shown, is that the assets of the estate may be collected, the debts paid, and the residue distributed to those entitled thereto. Distribution, in so far as the beneficiaries are concerned, varies as to whether the decedent died testate or intestate. If the testator left a valid will, distribution must be in conformity with its provisions; if he died intestate, distribution must be in conformity with the statute of distribution. Questions regarding the validity of a will and the effect of its provisions in themselves and in connection with other matters are covered in the first two volumes dealing with execution and interpretation. If the · decedent died intestate the statute of distribution controls, the law of the decedent's last domicile governing as to personalty and the law of the situs governing as to realty.1 If the testator's will does not dispose of all of his estate, the statute of distribution controls as to the portion regarding which he died intestate. Prior to the Statute of Distribution of 22 and 23 Chas. II, ch. 10, the administrator of an estate was entitled to enjoy the residue of the testator's personal effects after the payment of debts and funeral expenses.2 By the statute mentioned, and as further explained by the statute of 29 Chas. II, ch. 30, it was enacted that the residue of an estate of an intestate should, after the expiration of one full year from the date of the intestate's death, be distributed one-third to the widow and the remainder to the children or, if dead, to their lineal descendants; if there were no children then a moiety went to the widow and a moiety to the next of kin in equal degree and their representatives; if the decedent left no widow, the whole of the estate passed to the children; if there were neither widow nor children, the property was distributed to the next of kin in equal degree and their 1 As to what law governs, see §§ 265-296. 2 Edwards v. Freeman, 2 P. Wms. 435, 441; 2 Bl. Com. *515. representatives. Next of kin included ancestors as well as descendants. Similar statutes of distribution exist in ali jurisdictions in the United States. The particular statute involved should be consulted in each case. § 1596. Partial and Final Distribution Distinguished: Time for Distribution. By distribution is contemplated final distribution; statutes of many jurisdictions, however, provide for a partial distribution. This is usually allowed only after the expiration of a designated period from the granting of letters testamentary or of administration, or of the publication of notice to creditors, and then only after notice and hearing and a showing that the assets of the estate are more than sufficient to pay all debts. Partial distribution is generally allowed only to those who petition therefor, who may be all or a portion only of those entitled to the estate. The amount allowed on partial distribution is usually a matter within the discretion of the probate court according to all the circumstances of the case; and it is often provided that the distributee receiving a portion of the estate upon partial distribution must execute and deliver to the personal representative a bond in a sum designated by the court, conditioned for the payment, whenever required, by the distributee of his proportion of the debts due from the estate, not exceeding the value of the portion of the estate to which he is entitled.1 3 2 Bl. Com. *515. See, also, the English statutes of 1 James II, ch. 17, and the Interstates' Estates Act, 1890, statute of 53 and 54 Victoria, ch. 29. 4 Estate of Chesney, 1 Cal. App. 30, 81 Pac. 679; Estate of Painter, 115 Cal. 635, 47 Pac. 700; State ex rel. Pauwelyn v. District Court, 34 Mont. 345,86 Pac. 268. Although a provision in the will may defer the division of a por |