
    (27 Misc. Rep. 471.)
    In re HARPER.
    (Surrogate’s Court, New York County.
    May, 1899.)
    Trusts—Commissions of Trustee.
    Where a trustee for a number of years rendered his accounts to the beneficiaries without claim for commissions, and paid over the whole income, he cannot afterwards claim such commissions.
    Exceptions by the beneficiaries to a decree settling the accounts of John W. Harper, executor of John Harper, deceased.
    Exceptions sustained.
    Adams & Allen, for executor.
    Miller, Peckham & Dixon, for respondents.
   FITZGERALD, S.

An examination of the evidence in this matter satisfies me that the referee has correctly found that there was no agreement or understanding between the trustee and the beneficiaries of the trusts, respecting which the former is now accounting, that he would waive or renounce his right to the commissions upon the income which he has disbursed to such beneficiaries. He omitted, however, to deduct or retain from this income, which had been annually received and paid out by him during many successive years, pursuant to the requirements of the will of the testator, the commissions which he was entitled to withhold upon malting such annual or periodical payments; and the referee has held that, notwithstanding this, he is now entitled to claim and be allowed such commissions. Since the filing of the report of the referee, the precise question passed upon by him has been considered by the appellate division of the Second department, and a contrary view of the question has been taken by the court in its decision. Spencer v. Spencer, 38 App. Div. 403,. 56 N. Y. Supp. 460. While there are eases in which some of the language used in the opinions of the court may seem or tend to support the conclusion which the referee reached, in none of them was the point passed upon by him raised or decided. In Re Selleck, 111 N. Y. 284, 19 N. E. 66, the question was as to the right of the trustee, who paid over income monthly, which he was directed by the will to distribute as soon as it was received, to charge full commissions on each monthly payment of income made; and the court held that he did not have such right, but was only entitled to full commissions upon the aggregate of the income annually received and disbursed. The point presented in . Naylor v. Gale, 73 Hun, 53, 29 N. Y. Supp. 934, was whether the law which was in force at the time of their accounting, and which increased the compensation of the trustees, was to govern in determining the commissions to which they were entitled, and it was detided that it was. In re Prentice, 25 App. Div. 209, 50 N. Y. Supp. 1133, decides that a decree was not rendered without jurisdiction, because there was not then before the court sufficient property to-admit of immediate payment of the trustees’ commissions. In re Allen, 29 Hun, 7, 10, 11, affirmed in 96 N. Y. 327, and the case of Beard v. Beard, 140 N. Y. 260, 35 N. E. 488, have been examined, and in neither of those cases is found any determination or expression of opinion adverse to the decision in the case of Spencer v. Spencer, supra. That decision I feel compelled to regard as controlling my disposition of the question which I have been considering. The exception which has raised it is therefore sustained.

Exception sustained.  