
    Third Nat. Co. v. Commerce Union Bank.
    
      (Nashville,
    
    December Term, 1943.)
    Opinion filed July 1, 1944.
    
      W. P. Coopeb,, of Nashville, for defendant-plaintiff in-error.
    Hume, Howard, Davis & Gale, of Nashville, for plaintiff-defendant in error.
   Me. Justice Pbewitt

delivered the opinion of the Court.

The circuit judge entered a judgment of $489.50 in favor of the Commerce Union Bank as testamentary trustee of J. W. Gillespie, deceased, and his action was affirmed by the Court of Appeals. Certiorari has been granted and the case argued before this Court which, presents only one question: Whether the Commerce Union Bank as such testamentary trustee could maintain this suit, it having also been named executor under the will and no final accounting Raving been made as sucb executor. It is conceded that tRe Bank could not maintain tRe suit as executor-.

TRe record discloses tRat tRe deceased owed tRe Third National Company two notes secured by mortgages. TRe rental collections were by tRe deceased assigned to tRe National Company, and it undertook to witRRold a commission of 5 per cent for making tkese collections. TRe commission represents tRe amount involved in tRis suit, and tRe rents involved accrued and were collected by tRe National Company after tlie deatR of Mr. Gillespie.

TRe title to tRe real estate is expressly devised to tRe Commerce Union Bank, Trustee. Accordingly, tRe rigRt to manage tRe real estate would belong to said Bank as trustee. Administration of Estates in- Tennessee, Higgins, sec. 946, p. 551, and sec. 961, pp. 553-, 564; Schmid v. Baum’s Home of Flowers, Inc., 162 Tenn., 439, 37 S. W. (2d), 105, 75 A. L. R., 261; Combs v. Combs, 131 Tenn., 66, 173 S. W., 441.

It is sometimes difficult to ascertain just wRen tRe duties of tRe executor end and tRe duties of tRe trustee begin. In administration of Estates in Tennessee, Higgins, sec. 943, pp. 548, 549, it is provided:

“A question of moment that often arises is as respects the time when the executor shall be deemed to be also trustee; in other words when the trust proper has its exception (inception). TRe general rule is that when an executor collects or has under Ris control more than sufficient assets to pay the debts of the estate, Ris obligation to perform the trust duties begins.; and Re will thereafter be deemed to be discharged of the duties as trustee with respect to the surplus after the payment of debts and legacies. He will be presumed thereafter to be acting as trustee.”

In Fidelity Trust Co. v. Service Laundry Co., 160 Tenn., 57, 70, 22 S. W. (2d), 6, 10, this Court said:

“But when the testatrix names an executor as testamentary trustee, the fund bequeathed in trust may be treated as in the possession of the trustee, for the use of the beneficiary of the trust, as soon as the executors obtain possession of sufficient assets of the estate to justify the application to the trust of the sum fixed by the will.”

When these suits were brought the Bank, as executor, had not made its final settlement and been discharged. However, it had set up on its books a trust account as trustee under the will of Mr. Gillespie and the estate is solvent. It had done no other affirmative act as testamentary trustee, and we are of opinion that no further act was necessary. The legal title to this real estate being devised to the Bank as testamentary trustee, the right to sue for these rents belonged to the Bank in that capacity. In case of intestacy, the right to collect rents on realty owned by the decedent accruing after his death would pass to the heirs and not to the personal representative.

No formal qualification of the trustee was necessary as required by section 7773 of the Code. This section does not apply to testamentary trustees. Kerr v. White, 68 Tenn., 161.

The National Company insists that section 8467 of the Code applies, but this section simply provides that no executor or administrator may be appointed guardian of an infant “until he shall have first settled his accounts as executor or administrator.” This section locates the liability of the sureties, who are liable on the respective bonds, as the facts may show. Ezell v. Hamilton, 63 Tenn., 304; Adams v. Gleaves, 78 Tenn., 367. Also, this section does not permit an executor to act as guardian until his accounts are settled. Massingale v. Hale, 5 Tenn., 30; Ex parte Crutchfield, 11 Tenn., 336.

We have no statute which forbids a person from acting as administrator or executor and also as testamentary trustee. In the instant case the Bank, .which was both executor and trustee, set up a special account as trustee; and the right of action having accrued to the estate, we see no reason why it could not he maintained in the name of the Bank as trustee, even though no final settlement had been made of the estate. Certainly, the rents from which the commission in question arose presented a cause of action in the trustee and not in the executor. To hold otherwise would oftentimes result in loss to an estate after a cause of action accrued by the failure of the executor or administrator to close his accounts and permit the trustee to function.

Counsel for the National Company relies on the follow-, ing language used by this Court in Commerce Union Bank v. Gillespie, 178 Tenn., 179, 191, 156 S. W. (2d), 425, 430:

“The second assignment, also, is overruled,' since we agree with the Chancellor that complainant was not in position to file the bill in the capacity of trustee, not having proceeded with the administration in its capacity as executor to that point.”

The Court in that case was dealing with the right of the trustee to maintain a bill under the Declaratory Judgments Act, Code, sec. 8835 et seq., and held that the suit was properly brought by the executor, the transfer from the executor to the trustee not having’ yet become effective.

In tiie present case tiiere was no occasion for seeking a declaratory judgment on tlie part of the trustee, and the right to collect the rents accruing after the death of Mr. Gillespie passed to the trustee.

In Administration of Estates in Tennessee,''Higgins, sec. 942, p. 548, it is provided:

“It is permissible for these peculiar trust duties to have their exception (inception) and be operative from the date of qualification and to be concurrently performed along with his administrative duties.”

In 11 E. O. L., 21, it is said :

“. . . One fundamental difference between an executor and a trustée is, that the duties of the former pertain to the office, and those of the latter to the person. In accordance with this distinction' a person administering the estate of a decedent as an executor is said to act as such by virtue of his office; but in serving* as trustee he is deemed to act as the donee of a trust power. ’ ’

Upon a controversial matter the trustee is not entitled to a declaratory judgment until he is charged with the responsibility as donee of a trust power. This duty to act on the part of the trustee may be upon the death of the decedent or later, depending on the facts of the case. If the trustee has not been charged with the duty of acting, then the suit for a declaratory judgment is properly brought by the executor, as was done in the case of Commerce Bank v. Gillespie, supra.

It results that we find no error in the decree of the Court of Appeals and it is affirmed.  