
    Matter of Estate of Peter Moller, Deceased.
    (Surrogate’s Court, New York County,
    January, 1920.)
    Executors and administrators — when double commissions allowed — trustees — accounting.
    Where after payment of debts and legacies the residuary estate amounting to over $100,000 is given to the executors in trust to hold in three equal undivided shares for the benefit of testator’s children, commissions as executors and trustees will be allowed upon the judicial settlement of the account of the executors.
    Proceedings upon the judicial settlement of the accounts of executors.
    C. Montieth Gilpin, for petitioner Mary L. Sherman, as executrix of Charles A. Sherman, deceased, one of the executors of the decedent herein.
    Evarts, Choate, Sherman & Leon, for New York Life Insurance and Trust Company, as executors of the will of Charles G. Moller, deceased, one of the executors of the decedent herein.
   Cohalan, S.

The rule with regard to double commissions is that they are to be allowed where the will contemplates a separation between the executorial duties and those of trustees. Matter of Vanneck, 175 App. Div. 363; Olcott v. Baldwin, 190 N. Y. 99; Matter of Blun, 176 App. Div. 189.

Under this will the executors are directed to pay the debts of the testator, pay certain legacies and then the residuary estate is given to them in trust to hold the same in three equal undivided shares for the benefit of the testator’s children. Thus the duties of the executors must be first performed, the debts and legacies paid, etc., before the residue can be ascertained and the trusts set up. The will, therefore, is to be construed as contemplating the performance of duties in both capacities, and commissions as executors and as trustees will be allowed the accountants. Matter of Vanneck, 175 App. Div. 363; Olcott v. Baldwin, 190 N. Y. 99; Matter of Blun, 176 App. Div. 189.

The estate of each of the deceased executors and trustees, as the principal of the fund accounted for is over $100,000, will be entitled to receive a full commission for receiving and paying over the property as executors, and a one-half commission for receiving the principal and any accrued income as trustees, and a one-half commission on so much of the income as has been paid out by them as trustees during their lifetime.

Decreed accordingly.  