105 N.Y.S. 696 | N.Y. App. Div. | 1907
.James G-. Hunt is the survivor of the two persons, who áre named as the executors and trustees in the will of John IngersoB, deceased. His coexecutor "and cotrustee was John D. IngersoB. The testator died October 21,1883, leaving him surviving as his heirs at law one son, John D. IngersoB, above named, and one daughter, Mary Hunt. His will was shortly thereafter duly admitted to probate, and letters testamentary thereon were duly issued to the executors therein named. After the usual directions for the payment of his debts, the testator, by the second item of his will, devised and Bequeathed to his son and daughter all his estate, real and personal,-“ to share the same equally between them in the manner and with the restriction and condition hereinafter mentioned.”
Thé next item of his will is as follows:
“ Thwd. I give and devise the aforesaid real and personal estate to my executors in trust for the benefit of my son John D. Ingersoll and my daughter Mary Hunt above named to be received, used,*98 employed and paid out in the manner hereafter designated and directed, to wit: to be ".received as a trust fund, the present good investments to remain and sncli parts of the said estate as remains* now'uninvested to be invested in Real Estate securities, gqvermtjent stocks or other unquestionable securities.
“ And the said executors as such trustees are each and every year to pay to the said John D. Ingersoll and Mary Hunt each the one-half the net income'and proceeds of my said estate.”
The will then proceeded with particular, directions as to the application and disposition of the share of the income to-which the said John D. Ingersoll might become,entitled. The apparent purpose of these prolusions was to so limit his interest in the estate that, it could not he used, or.become available, for any other purpose than' his support and maintenance,' The executors were given a power to sell, if they should deem it best, any and'all or-such parts of his real estate. “ as they may deem it-to the advantage of the heirs-Plan'd. when sold the proceeds to be invested' in the securities above' named.” The succeeding'.clause of his will is as follows:
■ “Eight. At the death of the'said John D. Ingersoll or Mary Hunt the trust estate and the trust .power of the said executors over the estate of the deceased shall end and be void, and the property remaining at their decease shall become the property,of the child or children of the deceased; if none be living then to the heirs at . law of the said John D. and Mary Hunt, unless they or either of them dispose o.f their interest in said estate by will during their li ves.” ". .
The tenth item of the will designated the executors,
John D. Ingersoll died April 11, 1885j leaving his- son Fred T: Ingersoll his sole liei-r at law and" sole beneficiary under his will. Mary Hunt died intestate April 25, 1905, leaving as her only heirs at law her. sons James G. Hunt and Loton S. Hunt, above- nained.
The provisions of this will have' received judicial construction in various proceedings, either, directly with that end in view or incidentally where their construction was to some, extent - involved, and file rights' and interests of the parties interested in the estate have been further expressed and determined by various agreements.
. Shortly after the death of John D, Ingersoll proceedings Avere had, which resulted in the division of the whole trust estate into two portions and the allotment and transfer to Fred T. Ingersoll of the securities and parcels of real estate making up one equal share , thereof. The remaining share was retained by James Gr. Hunt, the survivor of -the two executors and trustees,- to fill out the unexpired trust during the life of- Mary Hunt.
This division was made by agreement of all-parties who were then interested in the trust estate, including both parties to this appeal'; and was further embodied in and ratified by a decree of judicial settlement of the accounts of the surviving executor and trustee, made by the Surrogate’s Court of Herkimer county pursuant to, and a.s directed by, the- agreement of all parties in interest. Following the terms of the agreement the executors received on that settlement full cornmissions as executors, computed upon the aggregate, value of the whole estate, including real estate. These commissions were apportioned, in the shares agreed upon, between the surviving executor and the estate of his -deceased coexecutor. Since the division of the estate James Gr. Hunt has. continued to hold and manage the half thereof, and has accounted yearly witli his mother for the income it produced, retaining each year full commissions on the income.
The decree provided, among other things that “ James J&. Hunt-,-" as executor and trustee of the last will and-testament óf John Ingersoll, deceased, is hereby directed to assign, transfer and deliver the remain
■ ' It seems to be concedéd that the will Imre in question contemplated that the. whole estate should be held and managed -by the-executors as such,"at least until the division -thereof, directed-■ by the eighth item of the will, above quoted, on. the death of one of the life' beneficiaries, and it was in fact so held and- managed by them. When John D. IngersoTl' died, then, following the pro'vh sions of thé will, it became necessary to.divide-the estate, and the division then made necessarily left one-half of the estate to be managed and administered as a separate trust for the- benefit of Mary Hunt, the life beneficiary, during her life, and on her death to distribute the corpus o'f the fund, so far at least as the same-'consisted of personal property, to those entitled thereto. This, necessarily
A further consideration lends some slight aid in arrividg at the understanding of these parties, which is disclosed by reference to various agreements in regard to the trust estate, to which Loton S. Hunt is a party, in which James G. Hunt is referred to as trustee of the- particular trust. That the surviving executor was not actually discharged from further duty or responsibility as executor in reference to some uncompleted business, properly belonging to his office as executor, is not decisive that he did not then assume in reference to this fund the duties of trustee, as distinguished from those as executor. The separate trust fund was - erected and set apart, and the property going to form it specifically designated by the agreement, pursuant to which the decree was made. As to that fund and the property that should thereafter compose it the decree was final and conclusive, and nothing remained to be done to completely set apart the fund except the actual transfer of the securities to himself as trustee. Whether or not that transfer was in fact made is immaterial. (Laytin v. Davidson, supra.)
Commissions should, therefore, he allowed the accounting trustee on the value of the personal property included in the trust fund, when the distribution thereof is. hereafter properly directed. Ho
■ In addition to refusing commissiotis to the accounting trustee the surrogate lias .also declined to make any allowance to him" of costs or disbursements, further than the direction that the referee’s and stenographer’s fees are to be paid fro.m the fund. H o valid reason appears why the costs and allowances.usually provided in such cases should not be made to the trustee on his accounting, and that matter should be corrected on "the rehearing, which is hereinafter directed. " " •
Loton S. Hunt, as an appellant, insists that the surrogate erred -in failing to charge the accounting trustee with tlie depreciation" in value of certain government- and railroad bonds.. ■
These bonds were securities which came to the executors as part of their testator’s estate. They were by the will instructed that “ the present good investments” were to remain. No' question is made as-to the merit of these-in vestments, hut as tlie time for their payment apjiroaclied the, premium gradually .decreased. This decrease is the loss in value complained of.. This question was properly disposed of by the surrogate. (Matter of Stevens, 187 N. Y. 471, 477; McLouth v. Hunt, 154 id. 179; Robertson v. de Brulatour, 111 App. Div. 882, 895.)
The decree of the Surrogate’s Court should be reversed, with costs to James G. Hunt, appellant,'payable out of the estate,.,and the matter remitted to the Surrogate’s" Court, of Herkimer county for further proceedings thereon.
Ail concurred, except Spring, J., who -dissented-from, that part only which allows double commissions. -
. Decree of Surrogate’s Court reversed, and proceeding remitted to that court for-, further proceedings thereon, with costs .to tlie appellant James G. Hunt payable out of the estate.
Sic.