123 Misc. 909 | N.Y. Sur. Ct. | 1924
Three questions are submitted upon this accounting. The first relates to a determination whether three extraordinary stock dividends which were declared after the death of testator are to be treated as income or principal. The 20th paragraph of the will provides that “ it is my intention that all dividends on stock declared subsequent to my death shall be deemed income
Another question relates to the commission upon real estate which is to be turned over in kind by the executor to the trustee for the purpose of the trust created by the will. The executor is not entitled to commissions on this real estate. The power of sale was never exercised. There was no equitable conversion. The real estate was not actually “ received, distributed or delivered ” by the executor as required by the Surrogate’s Court Act (§ 285). Matter of Taylor, 121 Misc. Rep. 7; Matter of Seiss, 119 id. 521; Matter of Boecher, N. Y. L. J. Oct. 7, 1921; Matter of Arenfred, Id. Jan. 23, 1924.
The third question relates to whether the trustee, the Farmers’ Loan and Trust Company, has a power of sale of personal property of the trust. Certain bonds described in paragraph 15 of the wili, added to one-half share of the residuary estate, is held in trust pursuant to the terms of the will. The executor and the trustee are not the same. The powers granted to the executor and to the trustee are different. We are not interested at this time in the powers granted.to the executor because the executor is about to turn over the assets in kind to the trustee to set up and establish the trusts. Whatever power there may be in the trustee is found in the 20th paragraph of the will. The first part of the 20th paragraph of the will relates only to the powers of the executor. The latter part of the 20th paragraph relates to the powers of the trustee. The testator set forth his wish and desire regarding the retention of property left by him, both real estate and the mentioned securities, and in the latter part of the 20th paragraph he reiterates his desire that “ as far as possible ” this property shall not be sold. Also “ that the trustee of said trust shall have power and authority to make investments and reinvestments of any funds or assets which may be at any time on hand in any property or securities whatever, real or personal * * The testator has practically stated to his trustee, the Farmers’ Loan and Trust Company, that he desired his property “ as far as possible ” to be held as he had held it. But that, when occasion arose in its judgment, it should have the power and authority to “ make investments and reinvest
The court construes and concludes that there is a power given in this will bo sell the personal property of the trust in the exercise of the sound judgment and discretion of the trustee.