79 Md. 94 | Md. | 1894
delivered the opinion of the Court.
In the former appeal, involving the construction of the will of the late A. S. Abell, the Court decided, that the trust created by the sixteenth clause continued so long as any one of the five daughters of the testator shall survive. And the Court also decided, that the daughters were entitled to the net income from the five-eighths part of the real and personal estate devised in trust, from the time of the testator’s death, without any deduction tor the payment of debts, legacies or costs of administration, all of which were to be paid out of the cash on hand and debts due the estate, and, if these should be insufficient, then out of the .corpus of the personal estate. Abell vs. Abell, 75 Md., 44.
The case being remanded, the appellants, as executors and trustees, on the 4th March, 1892, filed their accounts, showing the receipts and disbursements by them in each of these capacities. These accounts were referred to the special auditor, and he, on the 2d April, filed his report and account, to which both the appellants and appellee excepted. Testimony was then taken, and, the Court having passed on these exceptions, the matter was referred to the auditor to state an account in conformity with the views
The testator died in April, 1888, and the net income received by the executors from the personal estate from that time up to December, 1891, a period of three years and eight months, amounted to $451,870.10, and upon this sum they were allowed commissions as executors. The income thus collected by them as executors, they transferred to themselves as trustees, and they now claim as trustees, a commission on the same fund on which they had been allowed commissions as executors.
The fundamental error which pervades not only the first account filed by the auditor, but the final account, also, which was ratified by the Court, is the assumption that the income from the five-eighths part of the personal estate which was devised in trust for the daughters, and which was collected by the executors from the testator’s death in April, 1888, to 31st December, 1891, was rightfully collected by them as executors. Mow, if there is a principle of testamentary law settled beyond controversy in this State, it is, that, where the same person is both executor and trustee, under a will, the law will adjudge the fund to be in his hands, in the capacity of trustee, after the time limited by law for the. settlement of the personal estate; and this, too, whether he has or has not passed his final account in the Orphans’ Court, for the reason that that which the law has enjoined upon him to do, shall be considered as having been done, and from that time he holds the fund by operation of law in that character which he would be entitled to receive it upon a final completion of his trust as executor. This we have said in Hanson and wife, et al. vs. Worthington et al., 12 Md., 418, and in State, use of Gable et al. vs. Cheston and Carey, 51 Md., 352; and the same principle is fully recognized in Seegar
And it is equally well settled, that one who sustains this twofold relation cannot, of his own election, continue to act in the capacity of executor after the time allowed by law for the settlement of the estate, has elapsed, “ and after the arrival of the period when he ought to have acted as trustee and discharged his duties pertaining to that capacity.” Gable’s case, 51 Md., 352. And this rule of law applies with the greater strictness in this case, for the reason that the testator, by the sixteenth clause of his will, directs that the executors shall, within a reasonable time after Ms death, set apart five-eighths of both the personal and real estate, and hold the same in trust to collect the income thereof, and pay the same to Ms five daughters, so long as any one of them shall survive. The executors, it appears, in October, 1888, passed their first admimstration account, and, after the payment of debts, legacies and costs of administration, there remained in their hands the sum of $2,650,382.92. Why they did not set apart five-eighths of th^personal estate thus devised to them in trust after the passage of this account, or at least after the expiration of the time limited by law for the settlement of the estate, does not appear. Be that as it may, they had no right after that time, to collect the income from the trust estate as executors, and the law will treat the income received by them after that time as having been collected in their capacity as trustees. And upon tMs basis the auditor’s account ought to have been stated. • Assuming, then, that the net income collected by the executors from the trust estate during the thirteen months allowed by law for the settlement of the estate was in fact transferred to themselves as trustees, and that the income after that time was collected by them as trustees, and not as executors, we come to the question as to the commissions to be allowed as compensation for the services thus rendered, and to be rendered
And as to the income collected from the trust estate after the time limited for the settlement of the personal estate, and which the law adjudges was collected by them in their capacity as trustees and not as executors, they are for the same reasons entitled to the same commissions, but inasmuch as they have been allowed two per cent, on this income in their administration account, and to which they were not entitled as executors, this amount must be deducted from the five per cent, allowed to them as trustees.
In regard to commissions on the income collected by them as executors, within the thirteen months limited by law for the settlement of the personal estate, and which they had a right to collect as executors, there is some difference of opinion. In mew of the fact that their duties as executors and trustees are distinct and separate, and that they were obliged under the will to transfer the fund to themselves as trustees, and as such to disburse it among the cestuis que trust, they are, in the judgment of a majority of the Court, entitled to commissions for the responsibility thus incurred and the services thereby rendered. This income they had, however, collected as executors, and for which they had been allowed a cornmis
The right to appeal from the order of the Court fixing the rate of commissions is questioned in the brief of the appellants, but the decision in Diffenderffer vs. Winder et ux., 3 Gill & J., 314, is, we think, conclusive as to the question in the case of a conventional trust, like the one now under consideration. We come then to the question of a repairs” and “ betterments.” In the former appeal we decided the cestuis que trust are properly chargeable only with ordinary expenses and repairs, and that' the cost of new buildings and such improvements as may amount to betterments must be paid out of the corpus of the estate. And certain items charged in the auditor’s account to the corpus of the estate • as betterments, it is contended, ought to be charged as repairs, and, as such, payable out of the income. It does not seem to us, however, this objection can be sustained. All buildings are subject, more or less, to natural and unavoidable decay, “ and ordinary repairs,” when used in reference to buildings mean expenses reasonably incurred in keeping the property in good condition and order. “Betterments” it may not be so easy to define. All buildings are better by being repaired; but betterments mean something more than mere repairs, and may be said to mean improvements upon the building itself, or so near to it as to enhance its value. Any addition or alteration made to the buildings, or expenses incurred in draining or paving, may be said to be betterments. The items in the account, such' as constructing partitions in warehouses, whether temporary or permanent for the special accommodation of tenants; boilers and engines and furnaces for heating; elevators, gas machines, asphalt pavements; opening and widening streets adjacent to the property, — these and other like expenses can
As to 11 The Sun Building,” the witnesses differ widely as to its fair rental value all the way from $8000 to $13,-000. The entire building now rents for $11,760, of which sum the Messrs. Abell & Co. pay $6760 for the part occupied by them, and, besides, they furnish at their own expense, heat for the entire building. We agree with the Court below, that the rent now paid is a fair and reasonable rent, and that the rent paid by Messrs. Abell & Co. for the part occupied by them is about a fair proportion.
We agree, too, under all the circumstances, that $800 is a fair rent for “ Woodbourne.” The property in its present condition might, according to the testimony, rent for $1000 or $1200; but it must be borne in mind that Mr. Edwin E. Abell, the tenant, has expended not less than ten thousand dollars of his own money in permanent improvements, thereby largely enhancing its value, and of which the estate will reap the benefit. So, all things considered, we see no just reason for increasing the rent fixed upon by the Court.
It follows from what we have said, that in the appeal of Edwin E. Abell and George W. Abell, executors and trustees, the order must be affirmed in part and reversed in part, and the cause remanded, in order that an account maybe stated, in conformity with the views of the Court. And for the same reasons, the order on the appeal of John W. S. Brady, executor and administrator, will be affirmed in part and reversed in part, and the cause remanded.
Order affirmed in part and reversed in part, and cause remanded; each party to pay one-half of the costs of the appeal.