
    Matter of the Judicial Settlement of the Accounts of the Union Trust Co. of New York, as Trustee of the Estate of George P. Lawrence, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      Filed June, 1901.)
    Executor — Commissions Refused as Trustee.
    Where the provisions of a will manifestly contemplate the continued eo-existence and exercise of the duties of executor and those of trustee until the distribution of the fund, commissions will be awarded only in a single capacity, and where they have been awarded, upon his accounting, to one as executor only, an unauthorized direction of the decree that the balance be paid over to a trust company as “ executor and trustee ” cannot enlarge the company’s rights to commissions nor entitle it, upon the settlement of its accounts, to commissions in both capacities.
    Modified, 70 App. Div. 5.
    Proceedings upon the judicial settlemlent of the accounts of a trustee. Application for double commissions.
    Pe-ckham, Miller & King, for motion; Edwin C. Ward, for Lawrence Crawford; William B. McNiece, special guardian, opposed.
   Thomas, S.—

The trust company, on the settlement of the decree, asks for commissions as trastee.. The question as to the right of its predecessor to- commissions both -as executor and trustee was raised on the accounting leading up- to- the decree of September 20, 1897, and was decided by Surrogate Fitzgerald in the negative by a memorandum published in the New York Law Journal on August 6, 1897, in which Johnson v. Lawrence, 95 N. Y. 154, and McAlpine v. Potter, 126 id. 286, were cited as controlling authorities. In the proposed decree then submitted the allowances for double commissions asked for were -stricken out by Surrogate Fitzgerald and the erasures noted by him. The revision to the effect that the balance of the estate then remaining should be paid over to the trust company as executor and trustee did not create rights which did not exist independently of it. It is plain that the surrogate did not intend to determine anything directly to the contrary of his carefully prepared memorandum, or to make a decree intended to form a foundation for double commissions which he had concluded that he had no power to grant. Whatever his intent may have been, the decree did not have the effect of changing in .any way the legal rights of the executor or trustee to compensation. McKie v. Clark, 3 Dem. 380. The decree of September 8, 1900, on the accounting of the trust company then made, awards full commissions to the executor, both for receiving and paying out, and directs it to pay the estate to itself as trastee and discharges it as executor. The attention of the surrogate does not appear to have been called to the fact that this was in direct contravention to his decision, and it was not effectual, any more than was the previous decree, to vest in the executor or trustee a right to commissions not given by law. McKie v. Clark, supra; Bacon v. Bacon, 4 Dem. 5, 12. I concur with Surrogate Fitzgerald in his conclusion that no commissions can be awarded as trustee for any service rendered by the executor under the will of the testator. Full commissions as executor have already been paid, and no further commissions can now be allowed) except on income or other increase received subsequent to the last accounting.

Decreed accordingly.  