Laytin v. Davidson , 36 N.Y. Sup. Ct. 622 ( 1883 )

Barnard, P. J.:

It is not easy to accurately define when the duties of an executor end and those of a trustee begin. In a certain sense executors are trustees. They are to receive the estate and pay it out to creditors, legatees and persons entitled. Ordinarily their duties as executors end in a short time. If the payments are to be made at once when the parties are entitled to distribution, the case is clear that there is no such trust as calls for the payment of other commissions than those of executors. In the present case the executors are directed to retain, substantially, the entire estate in trust, to pay an annuity of $7,000 to the widow of testator, and to pay the income of one-fifth of the estate to each of five children of testator during their respective lives, and at their death to divide the share among their children, with a possible future trust during minority to such grandchildren as might be under age at the death of their parent.

By the terms of the will, the executors were directed to reinvest, when the testator’s securities should' be paid off, in securities upon land. This is no reason why their duties should be held to be those of an executor. The rule is, compensation is right both to executors and trustees, when the duties are performed by the same persons, if the executorship has ended and the trust commenced. The testator has provided that at the close of the executorship there shall be created five separate trusts, which shall last for five separate lives. The trustees are to sell land and invest and reinvest the trust funds. The fees as executors were earned when the estate was handed over by the executors to the trustees for these trusts. • The fund was separated by the decree of the surrogate. The executors were directed to retain the balance of the estate at the final accounting, after payments authorized “to be held by said executors as trustees under said last will and testament.” Such a decree was stated by the Court of Appeals to be most satisfactory evidence of the relation of the party to the fund. (Hurlburt v. Durant, 88 N. Y., 121.)

If the decree has not a conclusive effect, the facts make out. an undoubted trust as separate from that imposed upon an executor. If a testator give without restriction, and the executor pay at the final settlement of the estate, having no title beyond that attached to the office, there is no trust. If a testator convey a title to a sum of money to the executors to invest and reinvest for the benefit of another during his life, there is an additional duty as trustee, separate from executor, imposed upon him, and should be paid for as trustees are paid. There would scarcely be a question made if the will had provided that at the settlement the executor shall pay over the .five trust funds to persons other than the executors. The executors are trustees after the decree, and are to furnish care and skill and to be subjected to severe rules of responsibility in the management of the trust fund, and they ought to be paid accordingly.

Order of surrogate modified so as to declare the executors entitled to commissions as trustees, in addition to fees as executors as such.

Dykman and Pratt, JJ., concurred.

The part of the decree of surrogate appealed from modified so as to declare the executors entitled to commissions as trustees in addition to fees as executors.