32 N.Y.S. 1018 | N.Y. Sup. Ct. | 1895
This action was brought for the appointment of a trustee to succeed Joseph R. Kearny, as trustee of the estate of Philip R. Kearny, deceased, and also to obtain a judicial settlement of the account of said deceased trustee. Upon the trial of the action the court appointed a new trustee, and ordered a reference for the purpose of taking and stating the accounts of the deceased trustee. The referee took the account of the deceased trustee, and exceptions were filed to the amount of certain commissions allowed by him and to the allowance of others. Upon this appeal it is sought to bring up' for review the disposition of the referee as to the costs. But we do not understand that any such question can be here presented, because no exceptions have been filed as to the conclusion of the referee and the decision of the court in respect to these costs, and this point of the case will not, therefore, be discussed.
It may be proper to call attention to the fact that under the Revised Statutes there does not seem to be any power in the court to appoint a new trustee. The provision of the statute is (volume 1, p. 730, § 68), upon the death of the surviving trustee of an express trust, the trust estate shall not descend to his heirs, nor pass to his personal representatives, but the trust, if then unexecuted, shall vest in the court of chancery, with all the powers and duties of the original trustee, and shall be executed by some person appointed for that purpose under the direction of the court There is no provision in the statute authorizing the court to divest itself of the trusteeship, but it may appoint some person as its agent, under its direction, to execute the same. There seems to be no power to appoint a new trustee, except in the case of a trustee resigned or removed; and that there is a distinction between the appointment of a new trustee and the execution of a trust devolving upon the court by some person appointed for that purpose seems to be emphasized by the provisions of section 71 of the statute, which is as-follows: “The .chancellor shall have full power to appoint a new trustee in place of a trustee resigned or removed and when in consequence of such resignation or removal there shall be no acting trustee, the court in its discretion may appoint new trustees, or cause the trust to be executed by one of its officers under its direction;” there evidently being a distinction between the appointment of a new trustee and the execution of the trust by the court through the instrumentality of some person appointed by it. It has been held, however, that the attempt to exercise the greater power was a valid exercise of the lesser; and that where the court has at
It is claimed upon the part of the appellant that the trustees, as such, were.not entitled to commissions upon the principal of the estate which came into their hands as trustees, and our attention is called to various adjudicated cases in which it has been held that persons are not entitled to receive double commissions. These cases seem to hold that where the two functions of executor and trustee coincide, and run from the death of the testator to the final discharge, inseparable and blended together, double commissions or compensation in both capacities may not be allowed. But it has been expressly recognized, in the decision which has been referred to, that where the duties are distinct, and where by judicial decree the executor has been wholly discharged as such, and left acting and liable only as trustee, he will be entitled to his commissions as trustee (Johnson v. Lawrence, 95 N. Y. 162); and it is only in those cases in which the executor cannot be discharged, and be left acting as trustee, but both offices from the necessity of the case remain in existence, that the right to commissions as trustee must be