The opinion
On Motions for Rehearing
In our original opinion we held that certain items of income and expense were incurred in the business operations of the estate and that the trial court properly refused to allow commissions .on such items, relying on Dwyer v. Kaltayer, 68 Tex. 554 , 5 S.W. 75 . On re-examining this question we have determined that we were in error. In the case cited above the Supreme Court allowed a commission on the money realized from the sale of the goods on hand at the testator’s death. It determined that the executor should receive a reasonable allowance for the time and labor bestowed by him upon the business, rather than a commission “upon the purchase and sale of new goods”. The court did not discuss the type of income and expense with which we are concerned here.
We are of the opinion that the proper rule to be applied is to deny commissions on income arising out of the business and an expense reasonably incurred in the production of such revenue, provided the income would not have been realized, or the expense incurred, in the absence of such business operation.
Appellee specifically complains of the refusal on the part of the trial court to allow commissions on the following items:
MONIES RECEIVED DURING THE COURSE OF ADMINISTRATION
1. Land Lease rental $12,463.23
2. Rent from tenant house on farm 4,412.00
3. Monies received from Agriculture Adjustment Bureau 1,470.13
4. Farm rent on Oklahoma Property 1,447.19
MONIES PAID OUT DURING THE COURSE OF ADMINISTRATION
1. Taxes, 1271 Ac., Brazoria County 106.32
2. Taxes, 240 Ac., McClain County, Oklahoma 26.27
3. Property taxes paid County, State and School, Brazoria County 17,011.10
4. Taxes on Farm and Dairy 7,567.08
5. Insurance premiums on Farm building 1,818.83
The executor carried on certain business operations previously conducted by the testator. The revenues listed above, with the possible exception of the money received from the Agriculture Adjustment Bureau, apparently are not revenues derived from either of these business enterprises. None of the items of expense appear to have been made necessary by the operation of the business enterprises. There is no evidence in the record explaining any of these items, either of expense or revenue. It was stipulated that the money was received, or paid out, in the course of administering the estate. The fact that some of the items under general accounting principles would be considered in determining profit or loss is not a controlling factor. A commission of $2316.10 should have been allowed.
The appellees’ motion for rehearing is granted in part and the judgment previously entered by this Court is modified so that the judgment rendered against appellees will be in the sum of $863.40 instead of $3,179.50. In all other respects the motion is overruled.
Appellant’s motion for rehearing is overruled.
*593 Appellant’s motion for rehearing overruled; appellees’ motion for rehearing granted in part; former judgment vacated, set aside and annulled; corrected judgment rendered and entered and opinion on motions for rehearing filed April 1, 1965.