
    In the Matter of De Peyster.
    March 26, 1847.
    A trustee in passing bis accounts, on being discharged from his trust and transferring the property to his successor, is entitled to commissions on the capital of the estate, consisting of stocks and bonds and mortgages ; although the same came to him from his predecessor and were neither invested nor converted by him.
    
      He is also entitled to commissions on real estate, which his predecessor bid in on the foreclosure of mortgages thereon: the same being in equity, personalty so far ae the trust estate was concerned.
    
      Semb. The same principle extends to real estate generally, vested in trustees.
    This matter came before the court on exceptions taken to the master’s report, on passing the accounts of Mr. De Peyster as trustee under the will of Margaret Douglas, who died December 31, 1829. In October 1840, Mr. De Peyster became a trustee of the will, defacto, and so continued until May 9th 1845, under an agreement with his co-trustees, to perform the active duties, and receive the whole compensation of the trust. In fact, his appointment was invalid, which was established by a decision of the chancellor in Cruger v. Halliday, 11 Paige 314; but this was not a point in respect of his commissions.
    Among the trust properties conveyed and assigned to him as trustee, and which he released and transferred on retiring from the trust, were two houses and lots in Yarick street in the city of New York, and sundry stocks and bonds and mortgages ; all of which remained on hand in specie, during the continuance of his trusteeship. The houses and lots came to the estate, after the death of Miss Douglas, by the foreclosure of mortgages which she held thereon, and by the trustees purchasing in the premises at the sale. The master allowed to Mr. De Peyster, commissions in respect of the houses and lots, as well as the stocks and bonds and mortgages. The beneficiaries excepted to the report of the master in these particulars; as also in two others, in which they were sustained, but the points being of no interest, the details of the two latter are not given.
    
      B. F. Butler, for the beneficiaries.
    1. As to the bonds, mortgages and stocks. These were received from Mr. De Peyster’s predecessors, and some of them belonged to Miss Douglas. He never received or paid any part of the capital of either; nor performed any services in regard to them. The common law gave no compensation to trustees. (Lewin on Trusts, 222.) The statute gives it for money payments and no other. No case can be found in support of this allowance, and the occasion for claiming it must have been of frequent occurrence.
    2. Still stronger is the objection as to the houses and lots. These were never in the hands of the trustee as money or personalty. In respect of these, as well as the stocks, &c., the allowance is unprecedented and unauthorized. (Cairns v. Chabert, 9 Paige 164; Laws of 1817, ch. 251, page 292; 2 R. S. 93, § 58.) That the whole is fixed and regulated by the statute, he cited 2 Paige 287 ; 6 ibid. 216 ; 7 ibid. 265 ; 9 ibid. 403, 4, and 462, 467, 468.)
    
      M. S. Bidwell, for the trustee.
    The construction urged on the other side, against commissions on re-investing, leads to the allowance of those for receiving and transferring the capital of the estate. And it shows that the statute has never received a literal construction. .There was no law forbidding the allowance of commissions to trustees. In 1 J. C. R, 37, they were first refused, and yet in the decree the trustees were allowed for their time. In 1 ibid. 527, compensation was refused to executors. Then followed the act of 1815, saying that commissions shall be allowed to executors. In 1817, Chancellor Kent extended the allowance, by construction, to the committee of a lunatic, and Chancellor Walworth extended it in the same manner to trustees; and it is now held to have been very inequitable to refuse compensation to executors «fee.
    The statute is in terms confined to the receipt and payment of money. Yet it is conceded that it is not limited to money. The case in 9 Paige, 163, shows that. Now it is sought to limit it to a bond and mortgage which the trustee himself takes on an investment. Why limit it to that ? It is just as much a payment of money, when he turns over a mortgage taken by a former trustee, and transmitted to him. A deposit in bank by the testator, is a debt due to him. No one doubts the executor’s right to his commission on that. So is a bond and mortgage a debt due to the testator.
    The legislature fixed a money value for services of this character ; it did not intend to limit the allowance to the receipt and payment of money only. This is shown by Hopkins R. 42, where it is applied by Chancellor Sanford to “ the amount of property.” So Chancellor Kent, in Ex parte Roberts, 3 J. C. R. 43; and Chancellor Walworth, in 9 Paige, 163, where he regarded the statute as applicable to a bridge property, as well as to bonds and mortgages, left by the testator.
    If commissions are allowed on one kind of property, other than money, it must be on all kinds. The mortgages and bank stock in the eye of the law, were money. The Varick street houses and lots passed to the trustee as personal property. It was such in the hands of the former trustee. There is no reason for any distinction as to the compensation, between money in bank, bonds and mortgages, stocks or lands, which the trustee takes, holds, and delivers over at the close of his trust.
   The Vice-Chancellor,

said in respect of the stocks and bonds and mortgages, the law was well established, that the trustee is entitled to his commissions on discharging himself; although he transfer to his beneficiaries, or to new trustees, the identical stocks and securities which came to his hands at the outset of his trust. If any hardship or abuse be likely to result, from frequent changes of trustees ; the beneficiary may avoid it by annexing conditions in respect of the compensation to be allowed in case of a resignation or removal.

As to the houses and lots, the argument is strong that they fall within the equity of the statute; and that there is no well grounded distinction between lands and stocks, as to the trustee’s compensation. But independent of the general principle, these houses and lots were in this trust personalty in equity. They were things in action, converted into lands by the former trustees, for the preservation of the property.

In equity they continued to be personal property, and as such are not distinguishable in principle from the stocks and mortgages.

The trustee must be allowed his commissions on the value of the lands. The third and fourth exceptions, to the report are disallowed. No costs to either party.  