
    In the matter of the account of the trustees of Alfred B. Jenkins, deceased; Farnham Yardley and Henry W. Montague, trustees under the last will and testament of Alfred B. Jenkins, deceased.
    [Decided June 27th, 1923.]
    Surrogates may be allowed fees on accounting by trustees of sums of money upon which surrogate’s fees have previously been paid upon accounting by executors—the offices of executor and trustee under a will'are distinct although held by the same person.
    
      Messrs. Wall, Haight, Carey & Hartpence (by Mr. Wall), for the appellants.
    
      Mr. Howard 1sherwood (by Mr. Kocher), for the respondent. ,
   Church, Vice-Ordinary.

This is an appeal from that part of the decree of the Essex county orphans court, dated July 1st, 1921, which adjudged the surrogate’s fees on the accounting to be $3,866.70.

The surrogate claims that he is entitled to the fees by-virtue of the last three or four sentences of section 200 of the Orphans Court act.

The appellants claim that as to the sum of $3,123,863.30 principal, and $20,305.49 income, the surrogate has already-had his one-tenth of one per cent., as those amounts were previously stated in a decree as the balances of corpus and income respectively from the executor’s account and the amounts determined by the decree were not subject.to audit by the clerk of the court. ’

The main point in the case is whether the court was justified when fixing the allowance to the surrogate in considering the balance of corpus carried from the executor’s to the trustee’s account. I believe that the offices of executor and trustee under a will are distinct and separate irrespective of the fact that the trustees and executors may be the same persons.

In my opinion this is a case parallel to those which hold that executors are entitled to fees on all moneys that come into their hands; that executors and .trustees, as I have said before, are both allowed fees is abundantly proved by decisions in this state.

I shall, therefore, advise a decree that the surrogate is entitled to his one-tenth of one per cent, in auditing the trustee’s account exactly as it came from the hands of the executors.  