
    Matter of the Judicial Settlement of the Account of Arthur H. Waterman, as Executor of the Last Will and Testament of Robert T. Hicks, Deceased.
    (Surrogate’s Court, Kings County,
    July, 1908.)
    Executors and administrators — Compensation — Right to compensation and persons entitled — Right as executors or trustees.
    Trusts — Compensation — Commissions in two capacities.
    The same person is entitled to commissions both as executor and trustee when, apart from his executorial duty, there is a devise to him of the subject-matter of the trust, either express or implied; but in such a case he is not entitled to commissions as executor upon moneys received for the sale of real estate devised to the trustees and never sold by them as such.
    
      Proceeding upon the judicial settlement of the account of an executor.
    Bruce B. Duncan, for executor.
    Allison Butts, special guardian and attorney for legatees.
   Ketcham, S.

In the will under which the present account is made there is a well defined trust distinct from the executorial office, both as to the nature of its duties and the period of their assumption and exercise. Upon the question whether the same person is entitled to commissions both as executor and trustee, all the tests which have been adopted seem capable of being resolved into the simple inquiry whether or not, in addition to the functions which characterize executorship, there is a devise in trust.

The rule with respect to double commissions is stated as follows: “Where «by the terms of the will the two functions with their corresponding duties co-exist and run from the death of the testator to the final discharge, interwoven, inseparable and blended together so that no point of time is fixed or contemplated in the testamentary intention at which one function should end and the other begin, double commissions or compensation in both capacities cannot be properly allowed. But executors are entitled to commissions as executors and also as trustees where under the will their duties as executors and trustees are separable and their duties as executors having ended they take the estate as trustees and afterward act solely in that capacity.” Olcott v. Baldwin, 190 N. Y. 99, 105.

But these expressions are but another and more complex way of saying that the executor is entitled to double commissions when, apart from his executorial duty, there is a devise to him of the subject-mater of the trust, either express or implied. Upon such devise he necessarily takes a relation which in time and .character supervenes upon his executorial function and is wholly apart therefrom. It is the gift in trust, resulting in the legal title, which makes the distinction between the offices of the executor and trustee.

The executor should have commissions, as for receipt and disbursement, upon all the cash and personal property which have come into his hands during the course of his administration; but these should not be computed upon moneys received from the sale of real estate.' This real estate was devised directly to the trustee as such and has never reached the hands of the executor. Its sale was the act of the trustee and is not the subject of executor’s accounting or executor’s commissions.

Let decree of distribution be presented accordingly.

Decreed accordingly.  