160 Misc. 642 | N.Y. Sur. Ct. | 1936
Decedent’s will was probated by this court on November 9, 1921, and letters testamentary were duly issued to the decedent’s brother, John H. Moffitt. Mr. Moffitt acted as trustee under the trust created under paragraph fourth of decedent’s will in and by which the income of the trust fund was given to the decedent’s son, Stephen F. Nash, for life with the remainder to his issue if living and, if not, then to the children of decedent’s brother and sister therein named. Mr. Moffitt continued to act as trustee until March 16, 1923, when by proceedings duly had in this court, Plattsburg National Bank and Trust Company, Plattsburg, N. Y., was duly appointed substitute trustee in his place and stead.
The trustee further claims credit for an item of $5,400, representing the difference between the inventoried value of thirty-six shares of capital stock of Plattsburg National Bank and Trust Company as of the date of decedent’s death and the par value of the same number of shares of stock of said bank as of the date of this accounting. No objection has been made by the life beneficiary to the allowance of such a credit but objection is made by the life beneficiary to the allowance of commissions on the principal of said trust fund to the extent of said $5,400. In other words, the life beneficiary contends that the computation of commissions of the trustee for receiving the principal of the trust fund should be made upon such sum as represents the present value thereof rather than the inventory value thereof as of the date of decedent’s death.
With respect to the first objection, the rule seems clear that where income on a trust fund is payable to one beneficiary with the remainder to another, the failure of the trustee to deduct commissions on the income annually will amount to a waiver of commissions thereon. (Olcott v. Baldwin, 190 N. Y. 99, 109; Cook v. Stockwell, 206 id. 481, 486; Matter of Schaefer, 178 App. Div. 117, 134; affd. on opinion below, 222 N. Y. 533; Matter of Slocum, 60 App. Div. 438, 445; modfd. on other grounds, 169 N. Y. 153; Spencer v. Spencer, 38 App. Div. 403, 412; Matter of Morris, 134 Misc. 374, 384, 385; Matter of Blake, 156 id. 619, 620.)
In Matter of Haskin (111 App. Div. 754) the trustee had made several annual payments of income to the life beneficiary without deducting his commissions thereon. At the time of his accounting, it appears that he then had on hand more than sufficient income to pay the commissions claimed to be due him. The court allowed
In Matter of Morris (supra) the court awarded commissions to the guardian of an infant, although the same had not been deducted annually, upon the theory that the entire estate, both principal and income, was the absolute property of the infant and no rights of third parties being involved. All of these latter cases are clearly distinguishable from the case at bar. Nothing therein contained would seem to change the prevailing rule that the act of the trustee-in failing to retain annually the commissions due it constituted a waiver of such commissions.
Is the trustee entitled upon this, its first intermediate accounting, to one-half commissions upon the inventoried value of the principal of the trust fund, or must such commissions be computed upon the inventoried value of the trust fund less the depreciated value thereof, credit for which is claimed by the trustee as above mentioned? In Matter of Walker (138 Misc. 879), upon the second intermediate accounting of the testamentary trustee, credit was asked for one-half commissions for receiving certain securities in exchange for securities previously held by the trustee and which had enhanced greatly in value from the time of the receipt thereof. The court refused to award commissions upon
Prepare decree accordingly.