6 N.Y.S. 262 | N.Y. Sup. Ct. | 1889
The various controversies to which this suit relates arise under the last will and testament of Miss Frances B. liegeman, deceased,: who died in 1878. The executors and trustees named in the will were Nicholas F. Palmer and Richard H. Bowne. Mr. Bowne died in 1881, and thereafter Mr. Palmer acted as sole executor gnd trustee until his own death, in 1887. The plaintiff in the present action is the son of Nicholas F. Palmer, who had been employed as an accountant in reference to the affairs of the estate, and who, when his father died, took charge of the money, securities, and other property belonging thereto in order to preserve the same. The defendants are the various persons beneficially interested under Miss Hegeman’s will. The purpose of the suit was to procure the appointment of a new trustee; to have the accounts of the deceased trustee judicially settled, and his commissions fixed; to enable the plaintiff to account for his own doings relative to the estate, for which he asked a suitable compensation; and to obtain a construction of certain portions of the will, particularly the eighth subdivision of the second article. The case ivas referred to a referee to take proof, and upon his report the court at special term made a decree, confirming his conclusions for the most part. From that decree the various appeals are taken, which now come before us for consideration.
The questions argued orally, and discussed in the numerous briefs, relate to four matters: First, the construction of file eighth subdivision of the second article of the will; second, the power of the court to separate certain of the trusts under the will; third, the amount of commissions which should be allowed to the executors of the deceased testamentary trustee as his representatives; and, fourth, the alleged inadequacy of the bond which tile decree
The order of reference directed the referee not only to take testimony as to the questions arising upon the pleadings, but also to nominate a trustee or trustees in the place of Fichólas F. Palmer, deceased. The referee accord
The amount awarded to the executors of Nicholas F. Palmer, on account of his services as trustee, was only one-half of the commission allowed by law to trustees for receiving and paying out moneys. They claim that he was entitled to full commissions. We think not. It was said in the case of Wagstaff v. Lowerre, 23 Barb. 209, that the compensation of trustees is given for the care and management of the estate, and not for the simple act of receiving and paying out. It is nevertheless true that full commissions are not deemed to be earned until the trustee has both received and paid out the sum upon which the commission is to be computed. In the present case the trustee had actually received that sum. He had not paid it out, however, and, in the construction of statutes allowing commissions for moneys received and paid out, the practice of the courts of this state has been uniform, from the time of Chancellor Kent, to the effect that one-half of the commission iscfo be regarded as granted for receiving funds, and the other half for paying them out. In re Roberts, 3 Johns. Ch. 43; In re Kellogg, 7 Paige, 265. In accordance with the established procedure in this respect, half commissions were awarded to the executors of Mr. Palmer; but the other half for paying-out the estate could not properly be allowed until it actually was paid out, and this, so far as he was concerned, was prevented by his death. We do not think the transfer of the property to a new trustee, which was rendered necessary by the death of the prior trustee, is such a payment as to entitle the deceased trustee’s estate to commissions on account of such payment.
The only remaining question argued before us on these appeals relates to the penalty of the bond to be required of the plaintiff as the new trustee. This has been fixed at $25,000. The principal of the estate amounts to over half a million, and is chiefly invested in bonds and mortgages, but the judgment provides for the deposit of these securities with a trust company from whose custody they are not to be withdrawn without the direction of the court. Under the circumstances we do not think a bond in double the amount of the personalty should be required; but security in $25,000 is too small, and a bond of at least $50,000 should be furnished. The decree should be modified so as to require a bond in the penal sum of $50,000, instead of $25,000, and as thus modified should be affirmed, with costs. All concur.