
    COURT OF APPEALS.
    Philips Phœnix, &c., respondent, agt. Maria W. Livingston.
    
      Executors and administrators— Commissions, when trustees — Sow computed.
    
    Where executors are also trustees, they are entitled to commissions in hoth . capacities, where the will contemplates a severance of duties, and a point of time at which those of the executor would be ended and those of the trustees begin, but where a portion of the trust estates consists of real property, the commissions should not be computed upon the value of the real estate subject to the trust, but only upon sums of money, or other équivalent, received and paid out. ( Wag staff agt. Lowerre, 33 Barb., 309, overruled.)
    
      Decided March, 1886.
    
      J. D. Kernochan, for appellant.
    
      William B. Boss, for respondents.
   Finch, J.

There are but two questions in this case, and both may be considered without reviewing the complicated details of the trust accounts. These questions are whether the executors, who were also trustees, became entitled to commissions in both capacities, and if so, whether the trustees’ commissions are to be compjited upon the value of the real estate. The first of these questions must be answered by subjecting the facts established to the test of the rules adjudged in Johnson agt. Lawrence (95 N. Y., 154) and Laytin agt. Davidson (95 N. Y., 263). In the first of these cases double commissions were refused for the reason that th.e will contemplated no separation of duties on the part of the executors, and no transfer to or holding by them of any portion of the estate in the character of trustees; while in the second, double commissions were allowed upon the ground that the will did contemplate a severance of duties, and a point of time at which those of the executors would be ended and those of the trustees begin. In that case the severance of the trust funds from the general assets contemplated by the will had taken place; so much of the estate as was needed for debts, legacies and expenses had been to those purposes appropriated, and the balance, having been ascertained by a settlement of the executors’ accounts, became and was adjudged to constitute a trust fund to be further held and managed as such. Within the doctrine of these cases, commissions in both capacities were properly allowed in this.

The will contemplated a severance of duties and a point of time when that severance should take place. At the beginning of the instrument, after directing the payment of debts and expenses, the testator names six persons “ executors of and trustees under this my last will and testament” They were first to act as executors of the will and then as trustees under it A series of separate trust estates are then constituted, running for the lives of specified beneficiaries. Some of them required specific sums to be set apart, and others and more important ones provided in very careful detail for a severance of purely trust estates from the general assets and their further management and administration, not by the executors, but by five out of the six of them holding as.trustees. Since a serious portion of the trust estates consisted of real property, provision was made for a suitable partition for the purposes of the trusts, and a broad and abundant authority given for the management of the lands. The trustees were empowered to lease the improved property for a period not exceeding five years, and that which was unimproved for not more than twenty-one years. Authority was conferred to sell the lands in other states, the unimproved property in this state, and the dwelling house with the consent of the widow, and the trustees were authorized to rebuild structures destroyed or impaired and erect new buildings upon- unimproved property so as to render it productive.

A further provision of the will is quite significant. The trustees are empowered in their discretion, through the agency of a revocable power of attorney, to commit the management of certain of the trust estates to the beneficiary, but preserving in themselves the title and resuming control wherever they should deem it advisable. It is impossible to reflect upon these provisions of the will without a resultant conviction that the testator contemplated and provided for two separate duties to be performed by his representatives; one as executors and the other as trustees; the latter to commence at the termination of the former; and to begin witb a severance of tbe trust estates from tbe general assets and to be beld and managed thereafter by bis executors or some among them in tbe capacity of trustees. Sucb a severance was in fact made. Tbe accounts of tbe executors as sucb were settled, and there was left nothing but tbe trust estates to be managed for tbe beneficiaries. Separate accounts were opened with each and théy were beld and managed for many years, witb a great amount of labor, witb a large demand upon tbe care and patience of tbe trustees, and witb a very heavy burden of responsibility. We think it was a proper case for tbe allowance of commissions to tbe same persons, first in the character of executors and then in that of trustees.

Tbe appellants, however, further insist that tbe commissions of tbe trustees should not be computed upon tbe value of tbe real estate, and tbe argument is that commissions are only given upon sums of money or their equivalent received and paid out; that the trustees never received tbe fee of tbe lands, since that, fee vested at once in tbe grandchildren, tbe trustees taking,only an estate commensurate witb their trust, which simply terminated and was never transferred or paid over.

We think this objection is well founded, and that as it respects, real estate beld in trust tbe commissions of the trustees are not to be computed upon tbe value of tbe land which remains unsold

Tbe office of a trustee was at first deemed honorary and without compensation, but our statute changed tbe rule and allowed compensation t© executors, administrators and guardians at a fixed percentage, to be computed upon all sums received and paid out Trustees were not named specifically in the enactment, but they were beld to be within the equity of tbe statute and entitled to compensation as if included within it. To that we must therefore refer, and by that be governed in determining what allowance, if any, is to be made. Sums received and paid out are made tbe basis of computation. It has, nevertheless, been beld that securities received by an executor and by him turned over to tbe parties entitled might be treated as money received and • paid out for the purpose of computing commissions. This was itself an extension of the authority of the statute, justified by the consideration that what was accepted as money by the parties interested might well be treated as such for the purposes of compensation.

But we are asked now to take a step further and give a new extension to the act which does violence to its language, and makes land, in no just sense received or transferred, constructively money. The only authority for this doctrine is the case of Wagstaff agt. Lowerre (23 Barb., 209), and a few cases in the supreme court and the surrogate’s court in the city of New York, which have followed it as authority.

Wagstaff agt. Lowerre was a special term decision. It cited as authority but two cases, neither of which justified the conclusion reached. In one of them (Matter of DePeyster, 4 Sandf. Ch., 511), the court said, “there is force in the argument that there is no well grounded distinction between lands and stocks as to the trustee’s compensation,” but the remark was uncalled for, and unnecessary for the purposes of the decision. The lands there in question had been bid in upon foreclosure of mortgages belonging to the estate and in equity remained personalty and were therefore treated as such in the hands of the trustees.

The other case cited, Mc Whorter agt. Benson (Hop., 42), gives no indication that real estate was at all in question, and the elaborate opinion of the chancellor aims only to show that the statute had fixed a definite rate of compensation for an executor’s services; a rate computed upon the sums of money received and paid out, and that an allowance of a gross sum was not permissible. Wagstaff agt. Lowerre, therefore, stood upon no existing authority, and it can have only the force, derived from its reasoning.

In this court the question is an open one, and so far as we have been able to ascertain, has never been discussed and decided. We ought not to wander from the statute, and strain its construction to an extent approaching perilously near to legislation.

In the present ease the fee of the lands, it is conceded, vested, in the grandchildren by force of the will at the date of the death of the testator. The estate of the trustees took ’ priority, but only for the purposes of the trust (Stevenson agt. Lesley, 70 N. Y., 512). They were authorized to sell and to rent the real estate. Upon all sums of money thus realized and passing through their hands they were entitled, to commissions; but the unsold lands, at the close of the trust, passed to the possession of the remaindermen, not through any title derived from the trustees, but by force of the original devise. The trustees transferred no land, but simply refrained from exercising their power of converting it into money. And so they not only never paid it out even constructively by any grant ox conveyance, but never even received the absolute fee which all the time was a vested interest in remainder. Their estate was simply commensurate with their trust, bounded as to duration by the terms of the trust, and as to the unsold lands never equalling in value that of the fee. We must therefore adhere to the statutory basis of computation and decline to advance further in a construction which steadily departs from a plain and unambiguous enactment having a definite purpose and meaning. If hardship or injustice shall result, of which we are by no means certain,' the remedy may be readily applied by further legislation.

So much of the judgment as allows commissions upon the value of the unsold lands should be reversed, without costs to either party.

All concur.  