| N.Y. Sur. Ct. | May 10, 1888
Ransom, Sur. The conclusions following dispose of what I understand to be all the questions which have been presented for my consideration. The question whether, in ascertaining the one-third of the estate, the income of which the testator has' given to his widow, the legacy bequeathed to his mother is to be regarded-as a part of such estate, has been passed upon by my predecessor. He has held that it should be so regarded, and I concur. Thompson v. Thompson, 3 Dem. Sur. 409" court="N.Y. Sur. Ct." date_filed="1885-06-15" href="https://app.midpage.ai/document/thompson-v-thompson-6141837?utm_source=webapp" opinion_id="6141837">3 Dem. Sur. 409.
The commissions to which the accounting parties are entitled for receiving and disbursing the income payable to decedent’s widow are payable out of such income, and not from the corpus of the fund yielding it, nor from the residue of the estate. Cammann v. Cammann, 2 Dem. Sur. 212; In re Mason, 98 N. Y. 533. The will provided for the payment of this income semi-annually, and such income, as well as the income which was paid to the guardian of the infant son of the decedent, was, it seems, disbursed semi-annually. Under the circumstances, it was permissible for the accounting parties to appropriate annually, with respect to the income so disbursed, their commissions' at the full rates of 2§, 5, and 1 per cent. Hancox v. Meeker, 95 N. Y. 530; In re Mason, 98 N. Y 535; Meserole v. Meserole, 36 Hun, 298; In re Goodrich, Id. 299. The claim of the accounting parties to commissions as trustees, in addition to such as they have received, or are entitled to receive, as executors, is disallowed. The provisions of the will, viewed in the light of the decisions applicable to cases of like character, plainly show that no severance of the functions of the. accounting parties as executors and trustees was
The claim for commissions upon the value of real estate transferred to the decedent’s son upon his attaining majority should be denied. He became entitled, under the terms of the will, to-the residuary real and personal estate of the testator, subject to the provisions made for the widow, upon reaching his majority, when the trust established for his benefit by the will terminated. By the fifth clause of the will the executors were directed substantially to pay, deliver over, and transfer to the son all of testator’s residuary “property, real and personal,” upon his arriving of age. A power of sale with respect to his real estate, discretionary in form, was given to the executors. This clause, taken in connection with the other dispositions of the will, evinces no design on the part of the testator to have his real estate absolutely converted into money, either upon the discontinuance of the trust created for the widow, or upon the son reaching majority, when the trust instituted for his benefit would end. The terms “to pay” and “deliver over,” used in the clause referred to, are more appropriately applied to a disposition of personal estate, and would ordinarily have some influence in determining whether or not that is the character of the fund which the testator intended the beneficiary should receive. Here, however, the testator has also used the term “transfer,” and obviously, I think, with reference to the real estate mentioned in the clause, and to evidence a purpose to have his real estate, or such part of it as it might be possible to transfer to his son in specie, so transferred to him, and to preclude the notion that he intended, at all events and under all circumstances, to have it converted into money. The feasibility of the transfer of the real estate, respecting which the question now being considered has arisen, has been demonstrated by its actual transfer and conveyance; and no occasion, with respect to it, has arisen for the exercise of the power of sale given to the executors. It is plain, in view of the foregoing, that I regard the power of sale as purely a discretionary one, and conclude that the legal title which the executors and trustees took in the estate was commensurate with their trusts, and would terminate with them. In the ease of the son, the trust would end on his reaching majority. The trust in which the widow was interested would terminate upon her death, and as to part of the fund embraced in it upon her remarriage. Subject to these trusts, and to the discretionary power of sale given to the executors, the fee or remainder in the real estate was in the decedent’s son. The conclusion at which I have arrived, brings this case within the principle declared in the decision of the court of appeals in Phoenix v. Livingston, 101 N.Y. 451" court="NY" date_filed="1886-03-02" href="https://app.midpage.ai/document/phoenix-v--livingston-3582750?utm_source=webapp" opinion_id="3582750">101 N. Y. 451, 5 N. E. Rep. 70. It requires that the claim for commissions on the real estate in question should be denied.