117 N.Y.S. 539 | N.Y. App. Div. | 1909
John A. Haggerty died in 1863, leaving a last will and testament, by which he divided his residuary estate into, six shares,, to .bé held in trust for six nieces named, of whom Anna K. Shaw, then Haggerty, was one, with remainder to their issue. So far as material to this appeal, the will further provided that if any of said nieces
The questions involved relate solely to the commissions payable to plaintiff and to the estate of Jarvis. The corpus of the trust which came into the hands of Jarvis amounted to $60,100.34, of which $879.37 was in cash. The plaintiff paid to Jarvis’ estate $395.50 as commissions at half the statutory rate of moneys received. The referee held that, since Jarvis was a substituted trustee, he was only entitled to commissions on the amount of cash received, and surcharged plaintiff’s account with the amount of the commissions paid on securities, which he found to be $273.52. This amount should have been $373.52, but,'in view of the conclusion reached, the error is immaterial. He likewise allowed to the plaintiff for receiving the corpus of the trust half commissions on the amount received in cash only. The question thus presented ■ is whether Jarvis and the plaintiff were each entitled to receive half commissions on the whole corpus of the trust turned over to them as for money received.
The law does not contemplate .that an estate is to be charged with full commissions by every person who shall be called in to administer a trust, nor that such persons are to perform their part
For the same reason I think the plaintiff should have been allowed one-half the statutory commissions on not only the cash paid to him by the Jarvis estate, but also. on the cash received in the course of his administration in the liquidation of securities, which were originally received by him. The referee allowed him a commission only on the amount of cash received from the Jarvis estate. In this I think he erred. He was not only entitled to commissions for receiving the cash, as above stated, but ivas clearly entitled to commissions for paying out — that is, for distributing— the fund. The trust had terminated and the duties assigned to him by the court had been fully performed. This commission of one-half the statutory rate should be estimated on the total fund which he has to distribute in cash' or securities. (Matter of Notman, 103 App. Div. 520; Robertson v. De Brulatour, 111 id. 882; affd., 188 N. Y. 301.) It does not matter that the fund is to be turned over to trustees appointed under the will of Mr. Haggerty, or that plaintiff is one of them. So far as the trust for Anna K. Shaw is concerned, it was terminated by her death. The plaintiff has performed all the duties assigned to him by the court and nothing remains but to distribute the trust fund as directed by the will.
The judgment appealed from, therefore, should be modified as indicated in this opinion, .by allowing commissions on the cash received, and the fund distributed — the precise amount of which can be determined on the settlement of the order — and by sur
Ingraham, Laughlin, Clarke and Houghton, JJ., concurred.
Judgment modified as stated in opinion, and as modified'affirmed, with disbursements of appeal to all parties- who filed briefs, payable out of the trust fund. Settle order on notice.