
    In the Matter of the Accounting of Frederick Emerson, as Ex’r etc., of Asahel Read, deceased. Frederick Emerson, Ex’r, App’lt, v. Mary A. Webster et al., Resp’ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 20, 1891.)
    
    Executors and administrators—Accounting—Construction or will.
    R. gave the residue of his estate, real and personal, to his executor in trust to pay the same to M. A. W. during life, and after her decease devised all his estate to M. R. W., if she was at the time twenty-one years of age; if not, when she should he twenty-one years of age, the said income to be used for her benefit until that time. Reid, that the will contemplated a severance of the functions of executor from those of trustee; that the executor was entitled to account finally as executor and to a decree transferring the estate from himself as executor to himself as trustee.
    (Merwin, J., dissents.)
    Appeal by Frederick Emerson, as executor of Asahel Read, from a decree of the surrogate of Jefferson county denying his right to a final accounting and discharge as such executor.
    On the 11th day of June, 1881, Asahel Read made and executed his last will and testament, whereby, after bequeathing to Asahel Read, son of Hiram C. Read, a certain legacy therein mentioned, he gave, bequeathed and devised “ all the rest, residue and remainder of my real and personal estate to my friend, Frederick Emerson, the executor of this my last will and testament hereinafter nominated, in trust for the payment of my just debts and funeral expenses, and then to pay the income from said estate to Mary A. Webster during her natural life, to be used by her for her own support and the care and support of Mary R. Webster, and from and immediately after the decease of the said Mary A. Webster, I give and devise all my said estate to Mary R. Webster, if she at the time be of the age of twenty-one years, if not, when she shall be twenty-one years of age, and the said income to be used for her benefit until that time.” He then nominated and appointed Frederick Emerson as sole executor of his will, with full power, if he should deem it necessary, to sell and convey any or all of his real estate upon such terms and at such times as he should think best The will also provided that if the appellant should die before Mary R. Webster became twenty-one years of age, the surrogate should appoint some proper person to take his place. This will was duly admitted to probate by the surrogate of Jefferson county June 7, 1887. The appellant duly qualified as such executor and has since acted as such. He made and filed an inventory, as required by law, published the regular notice to creditors, collected the debts due the estate and paid the funeral expenses, debts and legacies. On the 20th day of January, 1890, the executor voluntarily filed his petition for a final accounting as such. This proceeding was commenced by the issuing of a citation, upon the return of which the executor filed an account of his proceedings as such, and asked to be discharged as executor, and that the balance of the estate in his hands as executor should be transferred to him as testamentary trustee under said will.
    The surrogate denied his right to a final accounting and discharge as executor, and held that the accounting was but an intermediate one. He also held that the offices of executor and trustee were co-existent and continuous and that the executor should retain the estate in his hands as such until the death of Mary A. Webster or until Mary E. Webster should become twenty-one years of age. He likewise refused to discharge the appellant as executor or to decree the trust fund into his hands as-trustee under said will. Erom this determination of the surrogate an appeal was taken by the executor.
    
      Sam Child, for app’lt; Joseph Atwell, for Mary A. Webster-J. C. McCartin, for Mary E. Webster.
   Martin, J.

The questions involved on this appeal are dependent for their solution upon the true construction of the testator’s, will. If the purpose of the testator as shown by the language employed in his will was to blend the functions and duties of the executor and trustee so that they were inseparable and were to run together from the death of the testator until the appellant’s final discharge, the decree appealed from was proper and should be affirmed. If, however, the provisions of the will show that the testator contemplated a severance of the functions and duties, of the executor from those of the trustee, then it follows that the decree was wrong and should be reversed.

After making certain bequests to Asahel Eead, the testator by his will devised and bequeathed to the appellant all the rest and residue of his estate, real and personal, in trust, 1. To pay his debts and funeral expenses; 2. To pay the income from the estate to Mary A. Webster during her natural life; and 3. Upon her decease to pay over to Mary E. Webster the whole of said estate if she should be twenty-one years of age, if not, when she became of age, and to use the income for her benefit until that, time.

That the testator intended to appoint the appellant a testamentary trustee to carry out the provisions of his will, as well as to constitute him the sole executor thereof, is manifest. The will conferred upon him the dual character of executor and trustee. As executor it was his duty to take possession of the estate, collect the debts due the testator, pay his debts and funeral expenses, pay the legacy given by the will and sell the real estate if he should deem it necessary.

These were his executorial duties. As trustee he was required to keep the residue of the funds belonging to the estate invested and to pay over the income derived therefrom to Mary A. Webster until her death, and if she died before Mary R. Webster became twenty-one years of age, then to appropriate the income thereof to her use until that time. Upon the death of Mary A. Webster and the majority of Mary R. Webster, the trust would end and the appellant would be required, as testamentary trustee, to account to Mary R. Webster for the estate in his hands.

We think the will shows that the functions of the executor and the duties of the trustee were separate. They were not to be executed concurrently and continuously to the end. The duties of the appellant as executor preceded his duties as trustee. The former were to be performed before the latter began. The trust as executor was ended when the appellant had taken possession of the estate, paid the legacies, debts and funeral expenses and rendered an account of his trust as such to the surrogate. He was then entitled to hold the estate as a trustee under the will. As such testamentary trustee, it was his duty to dispose of the income, and ultimately of the corpus of the estate, as directed by the will, and to account to bis cestuis que trust as such testamentary trustee. We think the learned surrogate should have stated a final account with the appellant, made a decree discharging him as executor and directing a transfer of the estate in his hands as executor into his hands as trustee, and awarded him such commissions as he would have been entitled to upon such an accounting and decree.

This conclusion is, we think, fully sustained by the following authorities: Laytin v. Davidson, 95 N. Y., 263; Matter of Mason, 98 id., 527, 534; Phoenix v. Livingston, 101 id., 451; Matter of Willets, 112 id., 289; 20 N. Y. State Rep., 735; Matter of Crawford, 113 N. Y., 560; 23 N. Y. State Rep., 722; Matter of Babcock, 52 Hun, 510; 23 N. Y. State Rep., 592.

It follows that the decree of the surrogate should be reversed, with costs payable out of the fund.

Decree reversed, with costs to the appellant payable out of the estate.

Hardin, P. J., concurs.

Merwin, J. (dissenting).

Within the rule laid down in Johnson v. Lawrence (95 N. Y., 154), I think this is not a case for the separation of the duties of executor and trustee. From the last clause of the will it is apparent that the testator contemplated that the office of executor should exist till the final distribution.

I therefore dissent  