
    Matter of the Judicial Settlement of the Account of the Union Trust Company of New York, as the Executor, etc., of James H. Gilbert, Deceased.
    (Surrogate’s Court, New York County,
    December, 1898.)
    Executor and testamentary trustee — Executor’s commissions refused on accrued income, of corpus, which the executor is about to pay over to itself as trustee.
    Where a will gives to a trust company, the executor and trustee, certain separate trust funds which it is to manage, invest and therefrom pay a fixed income to the several beneficiaries, using the principal therefor if necessary, and its provisions do not contemplate that commissions on such income should be paid from any other sources than the separate fund itself or its share of the general estate, in case the fund has not been productive, the trustee is entitled as executor to any commissions for paying out and receiving the corpus as trustee, but is not entitled as executor to any commissions upon uhe accrued income of the corpus, which income it is about to transfer to itself and retain as trustee.
    Application of an executor for commissions upon the income disposed of hy certain paragraphs of the twenty-second clause of the will of the deceased, which are as follows:
    
      “ 1st. That my said executor and trustee set apart the sum of five thousand dollars ($5,000) and invest the same for the benefit of Hugh McK. Walsh, of the city of Hew York, and after first paying all commissions, charges and disbursements incident to the management and investment of said sum, I direct my said executor and trustee to pay to said Hugh McK. Walsh the sum of five hundred dollars in each and every year, either from the principal or income of said above-mentioned sum of five thousand dollars, the first payment of said five hundred dollars to commence in one year after my decease, and said yearly payments are to he continued until said sum of five thousand dollars, with the accrued interest thereon, shall have been paid to said Hugh McK. Walsh, or he shall have died in the meantime. Upon the death of said Hugh McK. Walsh, if any part or portion of said sum shall remain undistributed, I direct that the same shall become a part of my residuary estate, to be distributed as hereinafter provided.
    
      “ 2d. If my servant, Felix Armstrong,is in my service at the time of my decease, then I direct my said executor and trustee to set apart the further sum of three thousand dollars from my said estate, and invest the same for the benefit of the said Felix Armstrong, and after first paying all commissions, charges and disbursements incident to the management and investment of said sum, I direct my said executor and trustee to pay to said Felix Armstrong the sum of three hundred dollars in each and every year, either from the principal or income of said above-mentioned sum of three thousand dollars, the first payment of said three hundred dollars to commence in one year after my decease, and said yearly payments are to be continued until said sum of three thousand dollars, with the accrued interest thereon, shall have been paid to said Felix Armstrong, or he shall have died in the meantime. Upon the death of said Felix Armstrong, if any part or portion of said sum shall remain undistributed, I direct that the same shall become a part of my residuary estate, to be distributed as hereinafter provided.
    “3d. I direct that my said executor and trustee invest all the rest, residue and remainder of my estate, and after first paying all commissions, charges and expenses incident to said investment, to pay the income arising therefrom to my father, James L. Gilbert, in semi-annual payments during the term of his natural life.”
    Miller, Beckham & Dixon, for executor.
    H. C. Sherwood, Rufus L. Scott, Knevals & Perry, Howard A. Taylor, special guardian, for respondents.
   Fitzgerald S.

The question, as I understand it, here presented for decision is as to the commissions to be allowed on the amount of income of the estate which the executor of the will of the decedent now has on hand for disposition. While it is not stated how much of this appertains to each of the funds whose income is disposed of by the first, second and third paragraphs of the twenty-second clause of the will of the testator, I take it that some of it belongs to each. The language in which these paragraphs are couched seems to me to preclude the notion that the commissions upon the income of any of these funds can be paid from any other source than the income of the fund itself or its share of the general incóme of the estate, in case it has not been separately productive of income. This is so, notwithstanding the capital of the fund may be used in supplying the fixed annual sum given to the beneficiary, but only, as I construe the will, to the extent of the deficiency of the income. The'funds disposed of by the paragraphs mentioned constitute trust funds intended by the testator to be set apart and to be distinctively and separately managed by the executor as trustee, and for the turning over of the corpus of the same to itself as trustee, the executor is entitled to commissions thereon for receiving it and paying it out. As to the income, however; of such corpus, which the accountant has in its hands and which it is about to retain or transfer to itself as trustee, I do not think that it is entitled to any commissions thereon as executor. There can be no doubt that the testator never contemplated or intended, in his creating trusts having for their object the collection and application of the income by the trustee éxclusively,. in its distinctive capacity as such, that the latter should receive commissions upon the same as executor in addition to those to which it will become entitled as trustee. The theory upon which an executor who is also a trustee is allowed commissions in each capacity upon the same fund, is that the testator intended that the capital thereof should pass in succession from the executor to himself as trustee, to be held by him exclusively in the latter character. Mo such intention can exist in cases of ordinary occurrence like the present, where no such succession is contemplated by the testator, but where the right to receive and disburse the income is solely conferred upon the trustee by the creator of the trust. The decision in the Matter of the Estate of John C. Work, Surr. Dec., 1897, p. 341, reinforces the views which I have expressed and is an authority for my refusal to grant the application of the executor for commissions upon the income in question.

Application denied.  