133 Misc. 601 | N.Y. Sur. Ct. | 1929
General Samuel Thomas died in 1903. He left an estate amounting to about $15,000,000. By his will duly admitted to probate he established four distinct and separate trusts: (1) The trust for his widow Ann Augusta Thomas, who is still living; (2) the trust for his son Harold Thomas, who is still living; (3) the trust for his daughter Eleanor Nancy Thomas, who married Robert Livingston Beeckman and who died in 1921 leaving no issue; and (4) the trust for his son Edward R. Thomas, who died July 6, 1926. This latter trust was to pay over the income to Edward R. Thomas in equal quarterly installments so long as he should live and upon his death to divide and set apart such shares so held in trust in as many equal parts or shares as said Edward R. Thomas should leave a child or children and issue of a deceased child him surviving, and to pay over one of such parts or shares to each of such children and to the issue of any deceased child, per stirpes and not per capita. Edward R. Thomas, by whose life this trust was measured and who was one of the trustees under decedent’s will, died July 6,1926. Pursuant to the terms of the will of Samuel Thomas, Archdeacon Dodshon was appointed substituted trustee to fill the vacancy created by Edward R. Thomas’ death. The manner of his selection we shall shortly describe. In this accounting proceeding a question has been raised whether said substituted trustee is entitled to commissions upon the corpus of said Edward R. Thomas trust fund. His application for such commissions is opposed by his cotrustees Elisabeth R. Thomas and Robert Livingston Beeckman and supported by his cotrustee Ann Augusta Thomas. It may be noted here that all of these trustees are substituted trustees and were appointed pursuant to the directions of the will exactly as Archdeacon Dodshon was. Eleanor Beeckman, General Thomas’ daughter, resigned as trustee and her husband, Robert Livingston Beeckman, was appointed in her place. Ann Augusta Thomas and George McCulloch Miller resigned and Henry T. Eldredge and Charles I. McBurney succeeded them. The latter died and was succeeded by Samuel Ricker, Jr. Mr. Ricker and Mr. Eldredge resigned and Ann Augusta Thomas, decedent’s widow, and Elisabeth R. Thomas, second wife of Edward R. Thomas, who are now acting as trustees with Robert Livingston Beech-man, succeeded them. At this point it is appropriate to record several vital points in connection with decedent’s will. (A) General Thomas gave his executors and trustees the power in their fullest discretion to sell any part of his estate, arbitrate claims by or against the estate, protect investments, pay assessments, etc. (Pars. 8 and 9 of the will.) (B) The language used in paragraph 3 of the will by which testator disposed of the residue is important in the consideration of our present question for he gave and devised the
“ Now, therefore, the undersigned, under the power and authority conferred upon them by the said will of said Samuel Thomas, deceased, do select and name Joseph H. Dodshon as executor and trustee to fill the vacancy caused by the death of said Edward R. Thomas, such executor and trustee so appointed to have all the powers and authority of any of the executors and trustees named in said will, including the power to appoint another executor and trustee to fill any vacancy which may occur in the future.
“ Dated, New York, October 13, 1926.
“ Ann Augusta Thomas,
“ Elisabeth R. Thomas,
“ Robert Livingston Beeckman.”
Two of these trustees are now opposing the payment of commissions to the substituted trustee thus selected by them. Archdeacon Dodshon qualified on the same day, viz., October IS, 1926. The petition and accounting of the four executors and trustees, including Archdeacon Dodshon, were filed May 26, 1927. From the time of his appointment up to the present time he has acted as trustee not only of the continuing trusts created by said will but of the Edward R. Thomas trust. The contention of Archdeacon Dodshon’s cotrustees expressed in other terms is that because he did not become a trustee until after the death of the life tenant, he is not entitled to commissions and this contention, as expressed, is based upon a bald, legal proposition which they assert that after the death.of Edward R. Thomas there was no longer any trust of and over which the Archdeacon could be trustee. Their position is justified by neither (1) the statute covering trustees’ commissions; (2) nor ordinary logic and common sense; nor (3) by the authorities.
First; The statute covering trustees’ commissions is as follows (Surrogate’s Court Act, § 285): “ Commissions of executor, administrator, guardian or testamentary trustee. On the settlement of the account of any executor, administrator, guardian or testamentary trustee, the surrogate must allow to him his just, reasonable and necessary expenses actually paid by him, and if he be an attorney and counselor-at-law of this state, and shall have
The statute thus provides for compensation for all who act as testamentary trustees; it makes no distinction between trustees who qualify at the beginning or during the life of the trust or after the termination of the life that measured the duration of the trust aiid before the trusteeship is ended. (.Matter of Silliman, 67 Mise. 27.)
Secondly, the position of the cotrustees is most illogical. They are, indeed, substituted trustees. They by their action taken under the terms of the will created this fourth trustee. From the moment when he qualified he had the same rights that they had to possession of the fund; he bore the same responsibility for the proper custodianship of said fund and its final distribution as they bore. Any negligence, any dereliction on their part and any loss sustained in said fund actively through or passively during his trusteeship might be made the subject of a surcharge against him. All of these considerations are a sufficient answer to the highly technical and erroneous reasoning of those who say “the trust was terminated with the death of Edward R. Thomas, ergo Archdeacon Dodshon could not have been appointed trustee of said trust and consequently he is not entitled to any commissions.”
Other answers are available. As a matter of fact, the other trustees not only made him, nominated him a substituted trustee of the whole estate of Samuel Thomas but they utilized his services,
While the term of the trust was ended by Edward R. Thomas’ death and the time arrived for the distribution of the fund in accordance with the terms of the will, the trusteeship did not end with Edward R. Thomas’ death but continued until (a) a full and proper compliance with the terms of the will was had, (b) an accounting filed and judicially settled, and (c) a decree made discharging said trustees including the archdeacon from further responsibilities with respect to said trust fund. Archdeacon Dodshon having been duly nominated and appointed, and having properly qualified as trustee and having fulfilled all the obligations resting upon him, within the terms of section 285 of the Surrogate’s Court Act, is entitled to commissions.
Thirdly, that the appointment of Archdeacon Dodshon by the surviving trustees after the death of the life tenant was legally effective in constituting him as a trustee of the Edward R. Thomas trust is supported by the authorities in this State. Before citing the most apt of these decisions, it is well to note here (1) that many of the authorities cited by the attorneys opposing this application are not in point for the reason that they relate to situations where the trusts in question were trusts of real estate and thus vitally different from trusts of personal property so far as this application is concerned; and (2) that opposing counsel also err in attempting to apply decisions rendered in proceedings where applications were made to the surrogate to name a substituted trustee to the present case where the will required at all Limes four trustees, and the surviving trustees, two of whom are now opposing this application, named the substituted trustee and not the court. The