
    Matter of the Judicial Settlement of the Estate of Robert Irwin, Deceased.
    
      (Surrogate’s Court, New York County
    
    
      Filed October, 1899.)
    1. Executors — Accounting—Trust Not Set Apart Unth, Accounting.
    Where executors neglected to pay over to themselves as trustees the principal of certain trusts created by the will of their testator, until about the time of their final accounting, the trusts cannot be charged with any part of the expenses of the principal incurred since the last accounting, nor be credited with any part of the net increase of the principal since the death of the testator, as these items must be deemed, respectively, debts and credits of the residuary estate.
    2. Same — No Commissions as Trustee on Trust Not Set Apart.
    Where the life beneficiary of a testamentary trust has died before the trust was formed, by the payment of the principal thereof by the executors to themselves as trustees, the executors are not entitled on their final accounting to trustees’ commissions on the principal.
    
      Judicial settlement of the account of executors and trustees.
    Geo. W. MeAdam, for accountants; Wilder & Anderson, for residuary legatees, contestants.
   Fitzgerald, S.

The following questions of law having been submitted to me for determination on the settlement of the proposed decree settling the account of the executors herein, I decide them as follows: “ First. Should the trust for $250,000 under the sixth paragraph of the will, the trust for $250,000 under the seventh paragraph of the will, and the trust for $20,000 under the third paragraph of the will, none of which were set apart until about the time of the making of the account herein, bear their pro rata share of the expenses of principal since the last accounting, amounting to $6,734.96, as set forth in schedule O, part 1, of this account? ” They should not. These expenses should be borne by the residuary estate. Second. Should the trust for $250,000 under the sixth paragraph of the will, the trust for $250,000 under the seventh paragraph of the will, and the trust for $20,000 under the third paragraph of the will, be entitled to a pro rata share of the net increase in the value of the principal of the estate of Robert Irwin, deceased, from the time he died to the date of the filing of this account, amounting to $17,701.45 ? ” Mo. The residuary estate is entitled to all the net increase in the value of the principal during the period given in the question. “ Third. Should full commissions be allowed on the above increase of $17,701.45, . and upon the disbursements of principal amounting to $6,734.96 ? Or, should commission be allowed on $17,701.45 at the rate of one-half of one per cent, for receiving the same, and on the sum of $6,734.96, at the rate of one-half of one per cent, for paying the same ? ” Commissions only at the rate of one-half of one per cent, can be allowed on the $17,701.45 for receiving the same, and at the same rate on the sum of $6,734.96, for paying out the same, commissions having already been allowed at the rate of five, two and one-half and one per cent, on nearly $700,000. The personal property of the decedent amounting to $100,000 over all his debts, each of the executors is entitled to full commissions. Fourth. The life beneficiary having died before the trust was formed, and the amount of said trust not having been paid over by the executors to themselves as trustees, should commissions be allowed the trustees as such on the $20,000 trust created under the third paragraph of the will % ” ¡No. In addition to the above questions the residuary legatees have submitted nineteen objections to the decree as proposed by the executors. They are all allowed with the exception of the 11th and 14th, which are overruled, and the 8th and 19th, which have been withdrawn. The special guardian is allowed $200, the residuary legatees, out of whose estate it is payable, having consented thereto. Amend the proposed decree accordingly.

Decreed accordingly.  