3 Mills Surr. 577 | N.Y. Sur. Ct. | 1903
The two surviving trustees oí the trusts created hy the will of the testator are accounting for their acts, and ■the acts of their deceased co-trustee, for the period between January^ 1, 1893, and July 1, 1900. There are two separate trusts, one as to $20,000' of principal, and the other as to the balance of the estate, amounting to upwards of $330,000 of principal, in personalty, besides considerable valuable real estate. The trustees have deducted sums for commissions for which they ask allowance. As to the trust of the $20,000' fund, they took one commission from each year’s income, which they divided between them, and as to this tío objection is made. As to the larger trust, which of personalty alone exceeded $100,-000 of capital, they took one commission for each of the three-trustees. No one year’s income amounted to $100,000, and it is objected that only one commission -is allowable. This objection is sustained by the referee, and his ruling is challenged before me, on an application to confirm his report.
An the Code provisions applicable stood prior to 18.92, the rule approved by the referee was the doctrine of the Court of Appeals as laid down in Matter of Willets, 112 N. Y. 289 and in McAlpine v. Potter, 126 id. 285. The sections of the Code of Civil Procedure then construed were numbered 2736, relating to commissions of executors and administrators, and 2811,. which referred to section 2736, and declared its provisions to apply where a testamentary trustee accounts.
An amendment was made to section 2736 by Laws of 1892, chapter 636, and it was determined by the General Term in this department in Naylor v. Gale, 73 Hun, 53, that the effect of such amendment was to entitle each of two testamentary trustees to a full commission on each year’s income received and disbursed, where the capital of personalty exceeded $100,-000.
By the Laws of 1893, chapter 683, sections 2735 to 2741,. both inclusive, were repealed, and no new sections bearing those
In the latest decision of the Court of Appeals upon this subject, the present section 2730' of the Code is relied upon, and a reference to that section in section 2810 is suggested as the foundation for its present application to testamentary trustees. Matter of Johnson, 170 N. Y. 139, 143. This case seems to me to be a binding authority to the effect that the present stat-. ute as to the commissions of executors and administrators is applicable to accounting testamentary trustees.
The General Term decision in Naylor v. Gale, supra,, is also binding upon me as to the force and effect of the statute as it now stands, and requires that, on this point the report of the learned referee must be reversed, and that the three commissions must be allowed as charged in the account.
The referee properly disallowed the payments made by the trustees for taxes on the Morristown real estate. These taxes Were properly payable by the life tenant, and no provision in the will cán fairly be construed to justify or require the trus
The contentions of the objeetants that one of the trustees should be held liable to reimburse the estate for loss incurred because of the failure of a bank, in the stock of which some of its funds were invested, has made it necessary for me to make a somewhat laborious examination of the voluminous testimony upon this subject. By the terms of the will, a wide discretion .-as to investments was given to -the trustees, and it was not .-seriously contended that any of the trustees could be held for this loss in the absence of proof of positive bad faith-, and as -to only one of the trustees was it contended that such proof had ’been furnished. Without analyzing all of the testimony I think it sufficient to state that I agree with the learned referee that the evidence will not justify a finding that the trustees, or any of them, acted dishonestly, -or with culpable negligence, with regard to this investment.
In all respects, except as above set forth, the report of the referee is confirmed.
Decreed accordingly.