In re Bennett's Estate , 42 N.Y.S. 674 ( 1896 )

FOLLETT, J.

The commissions of executors are fixed by section 2730 of the Code of Civil Procedure, which, among other things, provides:

‘T£ the value of the personal property of the decedent amounts to one hundred thousand dollars, or more, over all his debts, each executor or administrator is entitled to the full compensation on principal and income allowed herein to a sole executor or administrator, unless there are more than three, in which case the compensation, to which three would be entitled, must be apportioned, among them according to the services rendered by them, respectively, and a like apportionment shall be made in all cases where there shall be more than one executor or administrator.”

Subdivision 6 of section 2514 of the Code of Civil Procedure provides :

' “(6) The expression, ‘testamentary trustee,’ includes every person, except an executor, an administrator with the will annexed, or a guardian, who is designated by a will, or by any competent authority, to execute a trust created by a will; and it includes such an executor or administrator, where he is acting in the execution of a trust created by the will, which is separable from his functions as executor or administrator.”

By section 2802 of the Code of Civil Procedure testamentary trustees are entitled to the same commissions as executors.

The personal estate of the testatrix did not amount to $100,000, and realty of the value of at least $500,000 was unsold when the accounting was had. The surrogate’s court held that the will converted the realty into personalty, out and out, as of the date of the death of the testatrix, and that the executors took the entire estate as personalty, that it was to be administered as such, and that for the purpose of determining the amount of the commissions the entire estate was to be treated as personalty, and every one of the appellants was entitled to full commissions as executor and as testamentary trustee on the amount paid out in each .capacity. The special guardian not having appealed, we cannot determine whether each appellant was entitled to full commissions on $126,859.63, the amount paid out as executors; or whether each appellant was entitled to full, or any, commissions as testamentary trustee on $2,575.29, expended in the support of David S. Bennett. In McAlpin v. Potter, 126 N. Y. 285, 27 N. E. 475, the court of appeals, following the earlier cases of Johnson v. Lawrence, 95 N. Y. 154, and Laytin v. Davidson, Id. 263, has laid down a rule for determining whether a person is entitled to commissions as' executor and as testamentary trustee for administering the estate in the following clear and explicit language:

“Both cases agree in the rule that double commissions to the same persons, first in the character of executors and then in that of trustees, are to be awarded! only when the will contemplates a several and separable action in each capacity, not at the same but different stages of the administration, and that they are not to be allowed where the will makes no such separation, but blends-the two duties and commingles them without a severance. To the ordinary duties of an executor may be added the performance of a trust in such a manner that the two functions run on together. It is the duty of an executor as such to pay to a legatee the amount of the legacy in the manner and at the time provided by the testator, and it does not change that duty that the payment of the principal is postponed, and the income made payable annually in the meantime. A trust duty may thus be imposed upon an executor, which thereby becomes and is made a function of his office. A will must go further than that to admit of double commissions, and must clearly and definitely indicate an intention of the testator to end the executor’s duty at some point of time, and require him thereupon to constitute and set up one or more several trusts, to be held and managed as such for the interest of the beneficiary.”

I find nothing in the will which would justify the conclusion that the testatrix intended that the appellants should act in two distinct and separate capacities as executors and testamentary trustees, during the lifetime of her husband, or solely as testamentary trustees during his life. On the contrary, it is plain, I think, from the face of the will, that she intended them to act from the beginning to the end as executors, and that they should, as an incident of their executorial duties, expend so much of the income and such part of the principal as should be required to maintain her husband during his life. By the first, second, and third subdivisions of “Item Fourth,” the appellants, as executors, are authorized to continue the business of the estate until its final settlement, and are authorized to mortgage, lease, or sell any part or all of it, from time to time, as they shall deem best. This power existed during the lifetime of David S. Bennett, and now exists. The income from which they were to support the husband was received as executors, and, if any portion of the body of the estate was to be sold, and the avails applied for this purpose, it was to be done by them as executors, and not as testamentary trustees. So much for the intention of the testatrix. Under this will it was not possible for the executors to discharge all of their executorial duties under the first and second clauses, and then hold the estate as testamentary trustees for the benefit of David S. Bennett, unconnected with executorial duties. For, as before shown, the business was to be carried on by the appellants as executors, and the estate was to be wholly managed by them as executors. It was not possible for them, under this will, to have had a judicial settlement of their accounts as executors, and then to set apart and to have held the remainder of the estate solely as testamentary trustees during the life of David S. Bennett, and then, after his death, have taken up and concluded their duties as executors. The will does not empower them to separate their duties. Nor have the appellants acted upon this theory. They have kept no accounts as testamentary trustees, have not sought an accounting as such, nor have they done any act which, by the most liberal construction, can be called an act of testamentary trustees, except to expend ?2,575.29 for the support of David S. Bennett, on which sum each has been allowed double commissions as executor and as testamentary trustee. Article 2 of title 4 of the Code of Civil Procedure provides for an accounting by executors, and title 6 provides for an accounting by testamentary trustees. The appellants have not applied for an accounting as testamentary trustees, but for an accounting as executors.

Assuming that under a proper petition the two accountings may be combined, and double commissions allowed, there is no mention in the petition filed that the appellants had acted as testamentary trustees, or that an accounting in that capacity would be asked for. The accounts contained in the record are their accounts as executors, and not accounts as testamentary trustees. The expenditure of $2,575.29 for the support of David S. Bennett is included in the appellants’ accounts as executors, which shows how they understood and discharged their duties. There is nothing in the accounts rendered, or in the record, showing that these appellants rendered distinct services in both capacities. No error was committed by the surrogate’s court as against these appellants.

This appeal having been prosecuted by the appellants, not in the interest of the estate, but in their interests as individuals, they should pay the costs. That part of the decree of the surrogate’s court which is appealed from should be affirmed, with costs against the appellants personally. ' All concur.