3 Redf. 46 | N.Y. Sur. Ct. | 1877
— The act of 1866 chap. 115, provides that any trustee created by a last will and testament, or appointed by any competent authority to execute any trust created by such last will and
In Meecham v. Sternes (9 Paige, 398, decided in 1842,) it was held that where the instrument creating the trust says nothing as to the compensation of the trustee, the law implies the agreement to perform the services for the same allowance which is made by statute to executors, &c., but under this law it seems to have been held in Valentine v. Valentine (2 Barb. Ch., 433,) Drake v. Price (5 N. Y., 430,) and Mann v. Lawrence (3 Bradf., 424,) that where a trust and executorship were inseparable, the trustee was not entitled to double commissions, first in his character as executor, then in his character as trustee. But in Valentine v. Valentine (p., 438) the Chancellor says: “ The case would have been different if the executors had been directed by will to pay over this part of the fund to one of their number as trustee upon a separate and distinct trust.” And in Drake v. Price (above), Foot, J., (p. 431), incommenting upon Valentine v. Valentine, says: “ The Chancellor in that case decided that the executors held the funds in their character of executors, and not as trustees, and upon that principle it was held in that case that executors in making, in pursuance of the direction in the will, the investment
The will in this case, in conferring upon the accounting parties the office of trustee in respect of the-fund set apart by them for Charles E. Carman, as to-which they are now accounting, seems to discriminate between the office of executor and trustee, which creates the very distinction between the will in question and that referred to in Valentine v. Valentine, and recognized by the learned Chancellor, and if, in his language, the will had directed the executors to pay over the fund to one of their number as a trustee, upon a separate and distinct trust, would have entitled that trustee to full commissions, then it seems to me that the trustees in this case are equally entitled to their full commissions, and would have been so before the act of 1866, for either of the executors might have posession of the entire assets of the estate, and if perchance the executor who was named as trustee should have had possession of the whole fund, that circumstance would not deprive him, under the authority above cited, of his commissions.
Though the statute provides for the allowance of
In the case under consideration it is admitted that the funds accounted for in this proceeding are held by the trustees as such.
In neither of the cases cited, as against allowing the commissions asked for, was there the designation of the executor, as trustee, charged with duties as such.
Suppose an executor were appointed who owed the estate a large sum of money, — under the statute it is deemed an asset in his hands, and yet he would be entitled to commissions for receiving that sum.
Suppose again the estate is indebted to the executor, and of the funds received he retains sufficient to pay himself that claim, he would be entitled to commissions for paying himself that sum. That question is expressly decided in Meecham v. Sternes (9 Paige, 298), and when the statute in question says that on the accounting of trustees they shall be entitled to the same commissions as are allowed by law to executors and administrators, it makes no exception to the case where they have been executors also, and received funds from them as trustees.
The Case of Pirnie (1 Tuck., 119,) enunciates the
From such examination as I have been able to give the authorities, and the most careful consideration of the language and purpose of the act of 1866, I am of the opinion that the trustees on this accounting are entitled to commissions, as though they had never accounted as executors.
Order accordingly.