In re the Estate of Keen , 135 Misc. 435 ( 1929 )

O’Brien, S.

This is an appeal from the report of the transfer ta,x appraiser, and the order entered thereon, by the Fifth Avenue Bank of New York, executor, on the ground that the trustee’s commissions, as such, were not allowed as a deduction in addition to the allowance of executor’s commissions, and that by reason thereof the values of the transfers to John Henry Keen, Rosa J. Keen, Emily S. Keen, and the trustee for the benefit of persons of the five per cent class of taxation are erroneous and that the tax on each of these transfers is likewise erroneous. The decedent died on July 20, 1927. His will, after directing the payment of debts and funeral expenses, provided for two specific bequests and the payment of two general legacies. It further directed that his residuary estate be held in trust during the life of his wife, the income therefrom to be paid to her and John Henry, Rosa J. and Emily S. Keen in varying proportions. The appeal is sustained. It is obvious that the testator intended that his executor should take charge of his entire estate, collect the assets, pay the debts and administration expenses, satisfy the general legacies, deliver the specific legacies, and pay over the residue to itself as trustee. The duties of the executor and trustee being separate and distinct, trustee’s commissions, as such, should have been allowed. (Laytin v. Davidson, 95 N. Y. 263; Olcott v. Baldwin, 190 id. 99; Matter of Vanneck, 175 App. Div. 363.)

Submit order on notice modifying the taxing order accordingly.