
    In the Matter of the Judicial Settlement of the Accounts of John M. Hogarty, as Executor, etc., of Adeline S. de Rivera, . Deceased, and as Testamentary Trustee of the Trusts Created by the Will of said Deceased. Kate E. Leach, Appellant; John M. Hogarty and Others, Respondents.
    
      Will—equitable conversion — a gift consisting of a direction to pay over is contingent—allowances as in case of a “ contest ” — double commissions, when allowable.
    
    A testatrix by her will gave her residuary estate, both real and personal, to her executors in trust to sell and convert the same into cash and invest the proceeds in specified securities and “to pay over to my sister Kate E. Leach the net income arising from the equal one-lialf part of my said estate during her life,” and “ On the death of my sister Kate E. Leach to pay over, distribute and divide the equal one-half part of my said estate to and among the children of my said sister Kate E. Leach share and share alike, and in the event of any of such children being minors it is my wish that their father shall have no power or control to dispose of any share or shares bequeathed to such children by me.” The will further conferred on the executors an absolute power of sale.
    Kate E. Leach and three-children survived the testatrix. Subsequently these children released to their mother all their interest in the real and personal estate of the testatrix, and the mother, by an instrument in writing, attempted to release unto herself the income directed to be paid to her and claimed that by virtue of these releases the trust was terminated and that she was entitled to the trust estate freed from the trust.
    The statute upon the subject is as follows: “Whenever a beneficiary in a trust for the receipt of the rents and profits of real property is entitled to a remainder in the whole or a part of the principal fund so held in trust subject to his beneficial estate for a life or lives,, or a.shorter term, he may release his interest in such rents and profits, and thereupon the estate of the trustee shall cease in that part of such principal fund to which such beneficiary has become entitled in remainder, and such trust estate merges in such remainder.”
    
      Held, that the will effected an equitable conversion of the residuary estate not. withstanding that the executor had not exercised the power of sale given to him by the will;
    That as the gift to the children of. Kate E."Leach consisted solely, in the direction to divide the trust estate on the death of Kate E. Leach, the gift to them was contingent and not vested, and that the attempt to vest in Kate E. Leach both the corpus and income of the trust estate was void;
    That as the executor had not separated his duties as executor from his duties as trustee by converting the estate into money and setting the trust funds apart from the general fund, and as no separation of such duties had taken place by judicial decree, the executor, was not entitled to double commissions on his accounting as executor and as trustee;
    That as the surrogate had, without objection on the part of Kate E. Leach, treated the litigation as to the termination of the trust as a contest, she could not object because the surrogate had made allowances as in the case of a contest, notwithstanding that the term contest,” as used in section 2561 of the ■ Code of Civil Procedure, relates to the trial of an issue of fact.
    Where the executors of a will are also trustees thereunder, double commissions cannot be allowed unless the will contemplates a separation of the duties of executor and trustee and fixes a point, of time at which one function shall end and the other begin, or there has been a final j udicial settlement of the accounts of the executor as such.
    In order to warrant the allowance of double commissions the will must not provide for the coexistence continuously from the beginning of the two functions and duties, and where it does provide for separate and successive duties, that of trustee must be actually entered upon and its performance begun either by . real severance of the trust fund from the general assets or by a judicial decree which wholly discharges the executor and leaves him acting and liable only as trustee.
    Appeal by Kate E. Leach from a decree of the Surrogate’s Court of the county of Hew York, bearing date the 16th day of April, 1901, and entered in said Surrogate’s Court, judicially settling the accounts of John M. Hogarty, as executor, etc., of Adeline S. de Rivera, deceased, and as testamentary trustee of the trusts created by the will of said deceased.
    
      Louis A. Noble, for the appellant.
    . Samuel Biker, Jr., for the executor, respondent.
    
      Bufus B. Cowing, Jr., special guardian of infant respondents.
   Hatch, J.:

The will of Adeline S. de Rivera, deceased, contains a provision for a small bequest, and gives the rest and residue of her property and estate to the executors therein named, as follows:

“ I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, to my executors hereinafter named and to the survivor of them, in trust, however, for the following purposes: To sell and convert the same into cash and to invest the proceeds of such sale in bonds secured by .first mortgage upon real estate in the cities of Hew York or Brooklyn, worth at least twice the amount loaned, or in bonds of the United States of America, or stocks of the State or City of Hew York, and to pay over to my sister Kate E. Leach the net income arising from the equal one-half part of my said estate during her life.
“To pay over to my sister Mary A. Charles the net income arising from the other equal half part of my said estate during her life.
“ On the death of my sister Kate E. Leach to pay over, distribute and divide the equal one-half part of my said estate to and among the children of my said sister Kate E. Leach share and share alike, and in the event of any of such children being minors it is my wish that their father shall have no power or control to dispose of any share or shares bequeathed to such children by me.
“ On the death of my sister Mary A. Charles to pay over, distribnte and divide the.other equal one-half part of my said estate to and among the children of my said sister Mary A. Charles share and share alike.
“ I authorize and empower my said executors and the survivor of them to sell any portion of my said estate at public or private sale upon such terms as to them may seem meet, and the same to convey free and discharged of the trusts herein created.”

The will nominated and appointed Alfred Peuqnet and John M. Hogarty the executors thereof. Alfred Peuqnet died in the lifetime of the testatrix. After the.decease of the testatrix the will was duly admitted to probate and letters testamentary thereunder were duly issued out of the Surrogate’s Court of the county of Hew York to John M Hogarty, the petitioner herein, who duly qualified and entered upon the discharge of his duties as such executor, and in Hovember, 1900, presented to the Surrogate’s Court of the county of Mew York his petition for a judicial settlement of his accounts as executor and testamentary trustee.

So far as the trust for the benefit of Mrsi Charles is concerned, no question arises upon this appeal, she having died before the testatrix, leaving several children.

It appears that Mrs. Leach, who is now over sixty years of age, survives, and at the time of the death of the testatrix had, and at the present time has surviving, three children. These children, by an instrument,in writing, have released, granted and conveyed to their mother, Rate E. Leach, all their right, title and interest in and to the real and personal estate of the said testatrix, which they had by virtue of her last will; and the mother has, by an instrument in writing, attempted to release unto herself the income directed by the will to be paid to her, and claims that by virtue of these releases the trust period is terminated, and that she became, pursuant to the provisions of the statutes (Laws of 1897, chap. 417, § 3; Laws of 1896, chap. 547, § 83), entitled to the equal one-lialf of the trust estate freed from the trust. The statutes above referred to are the General Laws relating to real-and personal property respectively, and are identical in purpose and effect, the provision being as follows: Whenever a beneficiary in a trust for the receipt of the rents and profits of real property is entitled to a remainder in the whole or a part of the principal fund so held in trust subject to his beneficial estafe for a life or lives, or a shorter term, he may release his interest in such rents and profits, and thereupon the estate of the trustee shall cease in that part of such principal fund to which such beneficiary has become entitled in remainder, and such trust estate merges in such remainder.”

It is urged against this claim that the remainder is not vested in the children of Mrs. Leach by the provisions of the will; that the gift to them is contingent upon their surviving their mother, and, therefore, survivorship at the termination of the life of the mother; the time to which distribution is postponed, is an essential condition to the vesting of any interest in the corjms of the estate; that if the gift to the children of Mrs. Leach is not to a class and they take distributively, the remainders, at the best, are only vested subject to be divested by the death of either during the lifetime of the mother, and subject, also, to open and let in afterborn children of Mrs. Leach, and that, therefore, the transfer attempted to be made by the children to their mother of their 'interests under the will and the release by Mrs. Leach to herself, are inoperative to vest in Kate E. Leach the absolute title to the property from which the income was derived, or to extinguish the trust created by the will and she is not entitled to have paid and distributed to her the said one-half.

This question presents the principal point in controversy upon this ajipeal, the surrogate having decided and decreed that the claim of Mrs. Leach is illegal and void, and that she has not become entitled in remainder to the property devised and bequeathed to the executors in trust, and from such decree said Kate E. Leach appeals to this court.

We think that the construction of the will before us is not difficult, and that the canons of interpretation established by the authorities in this State may be applied to it with certainty; indeed we are of the opinion that the Surrogate’s Court has correctly determined the. question.

It is clear, in the first place, that the will works an equitable conversion of the residuary estate given to the executors in trust into' personalty. This is the evident scheme of the testatrix as disclosed! by the provisions of the instrument, and the first declaration as to the purposes of the trust is, to sell and convert the trust estate into cash and to invest the proceeds, in additiomto which there is a general power of sale. (Hope v. Brewer, 136 N. Y. 126, 134.) It appears that the executor has never exercised this power, but, under the rule as to equitable conversion, the fact that the executor has failed to execute the trust as directed in this respect, makes no difference in the construction to be put upon the will; equity regards that as done which ought to be done. We shall, therefore, apply the rules of law governing the devolution of personal property.

As to the portion of the trust estate the income of which is directed to be paid to Kate E. Leach, the testatrix directs that on her death the executors shall pay over, distribute and divide the equal one-hn.lf part of her said estate to and .among the children of . said Kate E. Leach, share and share alike. kChe fund is not given directly to any one upon the death of Mrs. Leach, the direction being is to be paid over, distributed and divided among her children, the persons thus made, the objects of the bounty of the testatrix take, not by virtue. of a. direct bequest or devise, but through the medium of the executors and by virtue of the trust vested in them, to be executed only upon the death of their mother/ ^The power cannot be exercised prior to such death, and, the gift being to a class,, it must be held to be to those persons who constitute the class at the date when the distribution or division is directed -to be made; therefore, the rule that “where the only gift is found iin a direction to divide or pay at a future time, the gift is future, mot immediate; contingent and not vested,” is manifestly applicable. (Matter of Crane, 164 N. Y. 71, 80 ; Clark v. Cammann, 14 App. Div. 127; affd., 160 N. Y. 315.)

In every case that we have been able to find where there has been ¡a gift or devise to trustees to pay income to some person for life, and ¡then to divide among the children, either those of the testator or of 'the tenant for life, the courts have held that the remainder, was con"tingent, except where the case fell within one of the two following -exceptions: First, if the postponement of payment is for the purpose of letting in an intermediate estate, then the interest shall be vested at the death of the testator, and "the class, if it be a gift to a ¡class, determined as of that date, for futurity is not annexed to the ^substance of the gift; second, where, from the examination of the "whole will, it is apparent that it was the intention of the testator •that the estate should vest in the beneficiaries immediately upon his ¡death, the rule governing where there is merely a direction to divide ¡at a future time must be subordinated to the primary canon of-¡construction, which requires that the intent of the testator shall control. (Matter of Crane, supra)

The will now before us does not come within either of these exceptions. There can be no pi'etense that the first appl~es, nor can there be found in the will any woi'ds evidencing that it was the intention of the ~estator that the estate should vest in the children of Mrs. Leach before her death. On the contrary, the only word:s which can be laid hold of are contained in the direction to pay over, distribute and divide on the death of Kate E. Leach. `It is the settled rule of construction that where the intent to vest the estate at the death of the testator cannot be found in the" four corners of the will," the rule we have invoked shall apply. (Goebel v. Wolf, 113 N. Y. 405; Matter of Baer, 147 id. 348.) The application of rule to the case at bar leads to the conclusion that the estate of the: children of Kate E. Leach is contingent, and can only vest in, those-, who shall constitute the class at the date when distribution is to be^ made, and it follows that the attempt to vest in Mrs. Leach both, the corpus of one-half of the trust estate and the income therefrom, is-void and of no effect, and she is not entitled to have distributed, to her the said trust fund.

Our attention is called to Matter of Brown (154 N. Y. 313), and,' it is urged that because there are no words of substitution or representation in the will before us, it is brought within the rule applied: in that case, and the effect would be the same as if the property had-; been disposed of unconverted. An examination of that case and of.' the other authorities cited upon this point shows this position to be wrong. In Matter of Brown (supra) the vesting of the estate in the children on the death of the testator was held, because the whole will disclosed such to be the intent of the testator. The will there, construed, in addition to the testamentary clauses, provided as follows : “c It being my intention and will that my said daughters shall'., have and enjoy absolutely for their own property during their lives, respectively, each one-half of the whole income of my estate from, the date of my decease, * * * and that the principal * * be equally divided between the children of said daughters absolutely for their own property, subject, however, to the above provided life-estates in the same; one-half to the children of Mary W., and the-other half to the children of Ella W.’ ” Here was a clear declaration that the estates of the children should vest at the death of the testator, subject only to life estates, and the court well says, “ how could they take subject to the outstanding life estates if their estates were unvested and contingent ? ” The rule we have applied in this, case was clearly recognized and upheld in that case, and we think it: clearly appears from the reasoning of the court and the authorities-, discussed that had it not been for this clause manifesting the intent.. and purpose of the testator as to the vesting of the estate, the rule-here invoked would have been applied to that will. The will, m Matter of Brown fell within both the exceptions noted, the postponement of payment was for the purpose of letting in an intermediate estate, and the will disclosed an intent that the estates of the; children should vest at the death of the testator.

The only other question presented by the. appeal is as to the allowance of commissions and costs. The surrogate has allowed full commissions on both capital and income, taken as separate funds, and seventy dollars as costs each to - the executor and special guardian. It is claimed on the part of the appellant that these allowances were erroneously made. As to the commissions, it is urged that the executor is entitled to only half commissions on what he has received and the same on what he had paid and shall pay out pursuant to the decree. The theory upon which the allowance was made by the surrogate seems to have been- that the executor is entitled to commissions in the dual capacity of executor and testamentary trustee. We are of the opinion that this basis for computing the commissions is wrong.'

The rule is that unless the will contemplates a separation of the duties of executor and trustee and fixes a point of time at which one function should end and the other begin, or there has been a judicial decree settling the final accounts of the executor, as such, double commissions cannot be allowed. The will must not provide for the coexistence, continuously from the beginning, of the'two functions and duties, and where it does provide for sej>árate and successive duties, that of trustee must be actually entered upon and its per^ formalice begun, either by real severance of the trust fund from the general assets, or a judicial decree which wholly discharges the executor and leaves him acting and liable only as trustee. (Johnson v. Lawrence, 95 N. Y. 154, 162; Laytin v. Davidson, Id. 263; Hurlburt v. Durant, 88 id. 121, 126, 127.)

In this case the duties .of the executor and trustee are coexisting .by the terms of the will and they have so existed down to the time of this accounting. It may be said with some force that the point of time when the duties separated should be the time when the estate was converted into money and the trust funds set- apart from the general fund. But in this case there was no fund except the trust fund and the one legacy of $200, and no conversion of. the estate has taken place. The executor has not executed the trust according to the terms of the will. Hor has any separation taken place by judicial decree. We think the appellant’s point in this respect should be sustained, and the decree should be modified as to the allowance of commissions.'

As to the allowances to the executor and special guardian for costs, we are of the opinion that they were properly made. It is the contention of the appellant that there was no contest in this case within the meaning of the Code; that there has heen no trial of an issue of fact, although such an issue was raised by the appellant’s answer; that the term “contest” as used in the Code (§ 2561) clearly relates to the trial of an issue of fact. It is true that the surrogate took no testimony in this proceeding, hut issues were made by the filing of an answer by the appellant and the surrogate regarded this as a contest and treated the questions raised as questions of law, the facts being conceded. This seems to have been acquiesced in by all parties. Ho objection to such course seems to have been taken by the appellant, and we are of the opinion that it is too late to do so now. The allowances made were such as the surrogate is given the power to make in case of a contest, and we think the allowance under the circumstances of this case entirely proper.

It follows that the decree should be modified accordingly, and as modified affirmed, without costs of this appeal to either party.

O’Brien, Ingraham, McLaughlin and Laughlin, JJ., concurred.

Decree modified as directed in opinion, and as modified affirmed, without costs to either party.  