
    
      In re Accounting of Byron D. McAlpine et al., Executors of Henry S. Potter.
    
    
      (Court of Appeals,
    
    
      Filed April 14, 1891.)
    
    1. Executors and administrators—Double commissions. ¡
    A will, in order to admit of double commissions, must clearly and definitely indicate an intention of the testator to end the executor’s duty at’ some point of time, and require him thereupon to constitute and set up one or more several trusts to be held and managed as such for the interest of the beneficiary.
    3. Same—Hale commissions on receipt op estate.
    Where the bulk of the estate comes to the executors already invested and in the form of securities which have not been turned into money, no law justifies the allowance of one-half commissions upon their estimated value in advance of their conversion into money or its equivalent.
    3. Same.
    The proper time for such allowance will be when the securities have been turned into money for the purpose of payment, or have been accepted by the legatees as cash without being converted.
    Appeal from judgment of the supreme court, general term, fifth department, modifying and affirming- decree of surrogate of Monroe county.
    
      S. D. Bentley, for legatees; Spencer Clinton, for ex’rs.
    
      
       Reversing 35 N. Y. State Rep., 706.
    
   Finch, J. J.

The principal question which is presented by this appeal is whether the commissions to be allowed are to be governed by the doctrine of Johnson v. Lawrence, 95 N. Y., 154, or Laytin v. Davidson, 95 id., 263. Both cases agree in the rule that double commissions to the same persons, first in the character of executors, and then in that of trustees, are to be awarded only when the will contemplates a several and separable action in each capacity, not at the same but at different stages of the administration, and that they are not to be allowed where the will makes no such separation, but blends the two duties, and commingles them without a severance. To the ordinary duties of an executor may be added the performance of a trust in such a manner that the two functions run on together. It is the duty of an executor as such to pay to a legatee the amount of the legacy in the manner and at the tune provided by tlie testator, and it does not change that duty that the payment of the principal is postponed and the income made payable annually in the meantime. A trust duty may thus be imposed upon an executor which thereby becomes and is made a function of his office. A will must go further than that to admit of double commissions, and must clearly and definitely indicate an intention of the testator to end the executor’s duty at some point of time, and require him thereupon to constitute and set up one or more several trusts to be held and managed as such for the interest of the beneficiary.

This will manifests no purpose of that character, for while it creates a trust and speaks of the executors sometimes as trustees, there is no provision in it which requires or contemplates a holding of any part of the estate by trustees as distinguished from executors. At its very outset it makes the executors either wholly and continuously such or wholly and continuously trustees, for in its first sentences it gives the entire estate in trust and directs the “ executors and trustees hereinafter named ” to retain it undivided till the period of distribution, and meanwhile to pay funeral expenses, debts, accruing taxes, repairs, reasonable insurance, one fixed and definite annuity, and aliquot parts of the net accruing income until the final distribution. There is no provision requiring any share or trust fund to be severed from the body of the estate, or to be ascertained as a residue of principal to be kept invested for its specific income payable to a beneficiary, but all duties without separation, whether imposed by the law or by the will, run on together mingled and blended to the end. An examination of the cases in which double commissions have been allowed will show that they were exceptional in their nature and contained provisions distinctly and definitely pointing to a holding by trustees as such after the duties of the executors were completed and ended. This is not such a case and double commissions were properly withheld.

A further question is raised over the allowance to executors of half commissions for receiving the funds of the estate. The law allows a specific rate for “ receiving and paying out all sums of money.” The statute indicates no division of thé commissions, which should apportion one-half to the receiving' and the balance to the paying out, though the courts have allowed it in proper cases. But the allowance here was premature. The bulk of the estate came to the executors already invested and in the form of securities which have not been turned into money. No law justifies the allowance of one-half commissions upon their estimated value in advance of their conversion into money or its equivalent. It was proper enough to allow one-half commissions upon all sums of money received, but until the securities become sums of money, either by conversion into cash or by their acceptance as cash by those entitled, the allowance is premature. The computation of the commissions at an earlier period pays for services before they are rendered and rests upon estimates of value which may be very different from the sums of money actually received and paid out. A time will come when the allowance may be entirely just and proper. That will be when the securities have been turned into money for the purpose of payment, or have been accepted by the legatees as cash without being converted. The allowance upon the securities was premature and without a statutory basis and must be reversed. I do not understand that any contrary rule was held in Matter of Accounting of Mason, 98 N. Y., 586. It was there said that at the distribution the trustees were entitled to half commissions for receiving and half for paying out the corpus of the estate, “ whether the funds be then in money or choses in action.” But the remark went upon the assumption that the trastees “had fully discharged their duties,” and so had paid over the whole fund, if not in cash, at least in securities which the legatees were bound to accept or voluntarily consented to accept.

The surrogate allowed to each executor full commissions for receiving and paying out the income of the estate, and the general term reversed, that in reliance upon Matter of Willets, 112 N. Y., 289 ; 20 N. Y. State Rep., 735. It is now claimed that the case was misunderstood and that the reversal was error. We said in that case that “when trustees account in reference to incomes which they are required annually to pay over and account for, no matter how much the principal may be, or how much the estate of the decedent may have been, § 2736 does not apply unless the income exceeds $100,000; and more than one commission can bo allowed only in case the sums upon whiph commissions are computed amount to at least $100,000.” The language seems decisive;. but our attention is called to a prior expression in the opinion that “ if this accounting had involved the whole of that estate the trustees would have been entitled to three full commissions ; ” and it is now said that the present accounting involves the whole estate. In some very loose and general sense that may be true, and yet not at all true as it respects the allowance of commissions. The accounting is final only as to the income received and paid out. As to the principal of the estate the final accounting has not been reached, and so the whole estate is not involved. When it is, § 2736 of the Code will apply. It is urged that the income accounted for does in fact exceed $100,000. The finding of the surrogate approved by the general term was the other way and it is not our duty to open that inquiry.

Some other questions are raised which we cannot determine without an investigation of the facts, which we ought not to be required to make. Thus it is said that the executors are overpaid by neglect to apply the decision of the general term and that one of the executors gets commissions twice over.

It seems to us best, therefore, to send'this case back to the surrogate for a new computation of commissions in accordance with the rules herein declared. And for that purpose we reverse the judgment of the general term and so much of the surrogate’s decree as relates to commissions, and order a new hearing before him in respect thereto, without costs to .either party as against the other.

All concur.  