In settling an insolvent estate, is the widow’s claim for the money value of her dower entitled to priority of payment over commissions due the executors and trustees, together with reasonable attorney’s fees, costs and charges incident to the proper administration of the estate?
The testator at the time of his death was interested in many business enterprises and owned various types of property. Some of his real estate was encumbered, and large holdings, including his residence, were not encumbered. In his will he declared his desire that his business undertakings be carried on for a substantial period of time. This undertaking required the borrowing of money from time to time and the *91giving of security for such, sums so borrowed. For such purpose, the widow joined the executors and trustees in the execution of deeds, mortgages and deeds of trust upon certain land. Obviously, under our decisions, she was entitled to dower in this property. The foreclosure of such mortgages and deeds of trust precluded the actual allotment of dower in the physical property, and consequently in accordance with the principles announced in Chemical Co. v. Walston, 187 N. C., 817, 123 S. E., 196, and Blower Co. v. MacKenzie, 197 N. C., 152, 147 S. E., 829, the money value of her dower must be paid out of funds realized from the sale of the remaining assets specified in the report of the referee and the final judgment of the court. Our statutes and decisions relating to dower have justly made liberal provision for widows and stand as an unfailing guarantee, that even in an insolvent estate, the widow and her dower right shall not be submerged and swept away in the swift-running tide of losses, misfortunes or bad judgment of the deceased husband. The decree provided that dower should be actually allotted and set apart in accordance with law in all the unencumbered land of deceased, and further provided for a sale of the remaining assets as set forth in the judgment. The chief controversy arises upon that portion of the judgment which authorizes the executors and trustees to pay out of the fund created by the sale, the balance of commissions due them, attorney’s fees and charges of administration before applying any part of the proceeds to the widow’s claim for dower.
Administrators and executors are not allowed commissions merely by virtue of the office or appointment as such. Such commissions are allowed for services rendered in administering, liquidating and settling the estate. Grant v. Pride, 16 N. C., 269. It has been the policy of the law to permit and allow reasonable commissions to executors and administrators together with reasonable attorney’s fees and such other assistance as might be reasonably necessary to proper and efficient administration. Thus, in Overman v. Lanier, 157 N. C., 544, 73 S. E., 192, this Court said: “While, ordinarily, administrators should not be allowed for clerk hire and the expenses of a bookkeeper, this being usually a part of the ordinary services for which he receives a commission, in this case the evidence discloses that it was necessary to employ such clerical assistance, and the allowance thereof was doubtless considered by the court below in fixing the commissions below the limit allowed by law.” Again, in Shepard v. Bryan, 195 N. C., 822, 143 S. E., 835, it was held that commissions and attorney’s fees, if reasonable and duly allowed by the court, constituted proper charges against the estate. See Thigpen v. Trust Co., 203 N. C., 291. C. S., 157, provides that executors and administrators “shall be entitled to a commission not exceeding five per *92cent upon the amount of receipts and disbursements which shall appear to be fairly made in the course of administration, and such allowance may be retained out of the assets against creditors and all other persons claiming any interest in the estate. . . . Nothing in this section shall prevent any executor, administrator or collector from obtaining a reasonable sum for necessary charges and disbursements in the management of the estate.” Thus the statute empowers such personal representatives to retain commissions “out of the assets against creditors and all other persons claiming an interest in the estate.” Manifestly, a claim of dower is an “interest” in the estate. Hence the wording of the statute lends direct support to the judgment. Moreover, the claim of the widow must be paid out of a fund produced by the sale of assets. This sale of assets and the creation of the fund thereby is accomplished through the processes and powers of administration. Certainly it would appear to be just that a person claiming an interest in a fund should be required to take such benefits subject to the reasonable costs and expenses of creating the very fund which liquidates the claim. It does not impair or diminish the dower right of the widow to require her to pay the freight on her own cargo. This idea was expressed in Trust Co. v. Stone, 176 N. C., 270, 97 S. E., 8, in which the Court declared: “We are, therefore, of the opinion the widow is entitled to dower in the proceeds of sale and, by the same reasoning, in the land unsold. She must, however, be content with the ascertainment of its value as to the land sold out of net proceeds, because, having consented to the sale and conversion, she is justly chargeable with the ratable part of the expense.”
Adams, J., took no part in the decision of this case.