5 N.Y. 430 | NY | 1851
Lead Opinion
The material question in this cause is, whether the appellant and his deceased co-executor held the funds as executors or as trustees, or in other words, whether, as executors, they had paid it over to themselves, as trustees, and held it in the latter character.
The same question arose on a similar clause in a will in the case of Valentine v. Valentine, (2 Barb. Ch. R. 430,) and chancellor WALWORTH decided, that the executors held the funds in their character of executors and not as trustees. His decision appears to me to be sound, and in accordance with the provisions of the will.
Holding the fund, and receiving and paying over the interest, as executors, the appellant and his co-executors are *432 clearly entitled to only one per cent on the interest received and paid.
Dissenting Opinion
The office of an executor is, to take possession of all the goods and chattels, and other assets of the testator; to collect the outstanding debt and sell the goods and chattels so far as is necessary to the payment of the debts and legacies; to pay the debts and legacies, and under the order of the surrogate to distribute the surplus to the widow and children, or next of kin of the deceased. These acts embrace all the duties which appropriately belong to the executorial office. If any other duty is imposed upon the executor, or any power conferred, not appertaining to the duties above enumerated, a trust, or trust power is created, and the executor becomes a trustee, or the donee of a trust power. And such powers are conferred, and such duties imposed upon him, not as incidents to his office of executor, but as belonging to an entirely distinct character — that of trustee. And in all such cases the trust and executorship are distinguishable and separate. The allegations of the complaint make out a case of trust. The defendants who were executors, were directed in the will of Gilbert Hunter to invest $5,000, as the share of the plaintiff, Julia Drake, and to keep the same invested during her life, and to secure the interest and pay the same over annually to her during her life, and on her decease, to divide the principal among her lawful heirs. The defendants in accordance with the direction of the will, invested the $5,000, and have annually paid over to her the interest, deducting therefrom five per cent commissions. This is not like the case of Valentine v. Valentine, 2 Barb. Ch. R. 430. In that case the trust had not been assumed by the executors by an investment of the trust monies, and the consequent separation from the monies held by the defendants in their character of executors. Here the separation was made. The share of the plaintiff Julia Drake, was taken out of the mass of the monies *433 belonging to the estate of the testator, and invested as a separate trust fund for the use and benefit of the cestui quetrust. The payment of the interest annually on the sum so invested to the plaintiff Julia Drake, is equivalent to an annual accounting under the 154th rule of the late court of chancery, and entitled the defendants to full commissions on the sum so received, as interest, and paid over each year, without regard to the aggregate amount of the previous receipts and disbursements by them, either as executors or trustees. (6 Paige, 216; 7Paige, 266; 2 Paige, 287; 9 Paige, 467.) The question whether the defendants would be entitled to double commissions for receiving and paying out the principal sum of $5,000, does not arise in this case. There was no actual payment to the defendants of the $5,000 as trustees; the money being already in their hands as executors. And there will be no actual payment out, of the $5,000, until the death of Julia Drake.
The Revised Statutes allow executors full commissions, only when monies are both received and paid out. And under the late chancellor's decision, one half commissions are to be allowed for receiving and one half for paying out, (7 Paige, 267.) No commissions can be allowed, on either the investment, or the reinvestment of trust monies, or on the collection of monies so invested or reinvested. (7 Paige, 265.)
I am of opinion that the judgment of the supreme court should be reversed.
Judgment affirmed *434
