
    Lavinia Beard et al., App’lts, v. Mary A. Beard et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed November 28, 1893.)
    
    1. Executors and administrators—Commissions as trustees.
    Executors are not entitled to commissions upon investments and rein-vestments and moneys disbursed and received in the conduct of a business-carried on to produce net income. The moneys paid out upon which commissions may be computed are the moneys paid out of the estate for debts,, expenses of administration and to legatees and other beneficiaries.
    2., Same—Interest.
    While executors or testamentary trustees have no legal right to commissions until they are adjudged and allowed by decree on settlement pf their accounts, yet where they have acted in good faith, honestly believing that they were entitled to take the commissions, and it does not appear that by such taking any injury or damage has been done to the estate, nor that they have made any profit on the moneys so taken, they should not be charged with interest.
    Appeal from judgment of the supreme court, general term, second department, affirming portions of a judgment, entered upon the report of a referee, which charged appellants for the entire amount of commissions withdrawn by them as trustees, with interest thereon.
    
      George Hoadly, for app’lts; Sanford H. Steele, O. T. Beard and Edward Hinman, for resp’ts.
    
      
       Modifying 51 St. Rep., 735.
    
   Earl, J.

William Beard died January 8, 1886, in the city of Brooklyn, leaving a will by which he disposed of a large estate. Among the property disposed of was what is called the Erie Basin property, and that property he directed his executors, and trustees to keep, improve and manage, and to carry on the business connected therewith as freely and fully as he could if living. The trustees took possession of that property and thereafter managed it and carried on business thereon. The will contained directions as to the disposition of the income from the property and business, which were substantially complied with by the trustees. This action was commenced by the trustees for the judicial settlement of their accounts. In carrying on the business they from time to time paid out large sums of money for expenses of the business, and their gross receipts were upwards of $600,000, and they made a net profit from the business of upwards of $300,000, and from time to time they drew and retained from their commissions upwards of $28,000.

It was held in the court below that the trustees were not entitled to commissions upon the gross receipts of the business, but only upon the net profits; that they were not entitled to take their commissions until they had been allowed by the court upon' the accounting, and that they were chargeable with interest upon the commissions so taken until the date of the final decree in this action. Whether the court erred in so holding is the matter for our determination upon this appeal.

Under the statute these trustees were entitled to receive for their services the statutory commissions for “ receiving and paying out ” the moneys of the estate. What do these words “ receiving and paying out ” mean as used in the statute? They are comprehensive enough if literally construed to embrace all moneys which came into the hands of the trustee as such, from whatsoever source or cause, and all monej's paid out by him as such on any account. If a trustee invests money he pays it out, and when it is repaid to him he receives it again. But it has been held that in such case the money is not received and paid out within the meaning of the statute. Matter of Kellogg, 7 Paige, 265; Betts v. Betts, 4 Abb. N. C., 317, 436 ; Drake v. Price, 5 N. Y., 430, 433. The same rule was laid down in Matter of Hayden, 54 Hun, 197; 26 St. Rep., 911, affirmed in this court, 125 N. Y., 776 ; 36 St. Rep., 1011. In that case the testator authorized his executors, in their discretion, to continue for a year the business of the manufacture and sale of furniture, in which he was engaged at the time of his death, and it was held that the executors were not entitled to commissions on the moneys paid out and expended in carrying on the business. Judge Barker, writing the opinion in the supreme court, which was adopted by this court, said : “ While it is apparent that the money was received and paid out in the execution of the provisions of the will and pursuant to the authority given by it, it nevertheless does not appear that from the business any profit or any advantage resulted' to the estate. The buying and selling incident to the conduct of a manufacturing or other business is at best a species of reinvestment of the trust funds. If commissions were to be allowed each time a stock in trade were purchased or sold, the executors’ commissions would largely consume the body of the estate, especially where the stock in trade is rapidly turned over and no great profits realized from the transactions.” Here many items of money, amounting in the aggregate to about $250,000, were disbursed in carrying on the business, all of which came back again to the trustees in the prices charged by them for the use of the basin and for services rendered by them to the patrons thereof, and in this way some of the money was turned over many times. It is plain that if a trustee, under such circumstances, is entitled to commissions on all the money received and disbursed the commissions might eat up the corpus of the estate, as indicated by the chancellor in the Kellogg case and by J udge Barker in the Hayden case. It is said by the learned counsel for the respondents that the rule laid down in those cases applies only to the investment and re-investment of the capital of the estate. The rule is not thus confined, and it was not so confined in the Hayden case, and the principle underlying the decision in those cases requires that it should be applied to such a case as this. The rule may work harshly in some cases. In the Hayden case, the trustees received no commissions for carrying on the business, as they made no profits. Here large profits were made, and the commissions allowed by the court below gave ample compensation to the trustees for the services rendered by them. We think the true rule for allowance of statutory commissions is this: Trustees are entitled to commissions for receiving all moneys which constitute the corpus of the estate, and any additions thereto from increase of any kind, and thus the moneys upon which commissions are to' be computed can never exceed the gross amount of the estate and its net income, and the moneys paid out upon which commissions may be computed are the moneys paid out of the estate for debts, expenses of administration and to legatees or other beneficiaries, moneys which operate to diminish the estate as it exists in the hands of the trustees and pass out of and away from the estate. This rule excludes commissions upon investments and re-investments and moneys disbursed and received in the conduct of a business carried on to produce net income. In the case of such business, the commissions are to be computed on the net income only which came to the corpus of the estate as an increase thereof. If this rule does not in all cases give adequate compensation to trustees, no great injustice can flow from its operation, as trustees are not obliged to act and thus execute a trust which would be unprofitable or burdensome to them, and that the rule will operate beneficially in most cases and subserve the best public policy cannot be doubted.

The conmissions of trustees are to be allowed on the settlement of their accounts, and the general rule is that they cannot be legally taken before. Code § 2802 ; 2 R. S., 93 ; Wheelright v. Rhoades, 28 Hun, 57; Hancox v. Meeker, 95 N. Y., 528; Matter of Mason, 98 id., 527 ; Matter of Selleck, 111 id., 284; 19 St. Rep., 601. There is an exception to the general rule where the trustees settle with the beneficiaries and pay out the residue of income or of the estate. There they may first deduct and retain their commissions without waiting for a judicial settlement of their accounts. While, therefore, in this case the trustees had no legal right to any commissions until they were adjudged and allowed by the decree in this action, they had earned their lawful commissions at the time they took them. They had then rendered the services for which the law allows the commissions. They acted in good faith, honestly believing that they were entitled to take the commissions. It does not appear, and was not found, that by taking these commissions they caused any injury or damage to the' estate ; and from the situation of the estate, and the nature of their duties, and the character of the business they carried on, an injury or loss to the estate cannot be inferred. It does not even appear that they made a profit from the funds withdrawn for their commissions. They were held liable for the interest upon the sole ground that they took their commissions prematurely. Under such circumstances, we think it was error to charge them in this equitable accounting with the interest, and for this conclusion the case of Price v. Holman, 135 N. Y., 124; 48 St. Rep., 381, is ample authority. There we held that a trustee is not to pay interest solely for the reason that he deposits the trust moneys indiscriminately with his own, nor because he makes use of them in his own business ; that there must be superadded a breach of trust, or neglect or refusal to invest the funds at the time or in the mode which the trust instrument, or the law itself, has pointed out, and we said: The law itself exacts of a trustee fidelity to his trust. If he is guilty of fraud or the mismanagement of the trust fund, or is guilty of a breach of trust, or has used the trust funds for his own purposes, and made a profit therefrom, he may be compelled to pay interest, and in extraordinary cases compound interest, so as to place the cestui que trust in the same situation as if the trustee had faithfully performed his proper duty.” Here all the elements as grounds of liability for interest on the commissions taken are wanting. It was not found, and does not appear, that the trust estate would have gained a dollar if the commissions had not been taken.

Our conclusion, therefore, is that the judgment below should be modified by striking therefrom the charge against the appellants of interest on the commissions allowed to them, and that, as thus modified, it should be affirmed, without costs to either party in this court.

All concur.  