
    In the Matter of the Judicial Settlement of the Account of Samuel D. Babcock and Joel Burke Wolfe, Surviving Trustees Under the Last Will and Testament of Joel Wolfe, Deceased.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 24, 1889).
    
    Trustee—Executors and administrators—Accounting—When double. COMMISSIONS ALLOWED.
    Where there is a separation of the functions and duties of executors, ■ and those of trustees, and the duties of executor precede the functions to he performed as trustees, and there is no provision for the co-existence, continuously and from the beginning, of the two classes of functions and. duties, double commissions are allowable.
    Appeal by the trustees from that part of the decree of the surrogate of the county of New York, which adjudged that they, as such trustees, were not entitled to any commissions on the principal of the personal estate in addition, to the full commissions on the corpus thereof awarded to them as executors under a previous decree made by the surrogate on their final accounting, as surviving executors of said will, and determining that only one commission on the corpus of the estate was allowable to each of them.
    
      Henry Himmelmann, for app’lts; Henry W. Clark, for Alice G. Wolfe.
   Macomber, J.

It is apparent that the surrogate disallowed, the claim of these surviving trustees on the ground that the testator did not, by his will, contemplate a severance of the functions of the executors from those of the trustees, technically so-called.

The general rule is well established as enunciated in the case of Johnson v. Lawrence (95 N. Y., 154), that where the functions or duties of the executor and trustee are not separable, but are blended together, double commissions, are not allowable.. On the other hand, as is decided in the case of Laytin v. Davidson (95 N. Y., 263), where the duties distinctively of an executor cease, and those distinctively of trustees are assumed, double commissions are allowable.

This question is to be determined by an inspection of the will itself. By that instrument Joel Wolfe directs his executors to pay his just debts and funeral and testamentary charges and expenses, and authorized them to expend $5,000 upon his burial lot, by way of ornamentation and improvement.

By the second, third and fourth clauses he gives certain legacies to his wife and two of his nieces.

By the fifth clause he gives, devises and bequeaths “all the rest, residue and remainder” of his estate, real and personal, to his executors, the survivors and survivor of them, their heirs, successors and assigns, to have and hold the same as joint-tenants, upon the following uses and trusts, to have and to hold the same, and the rents and issues, etc., to collect and receive the same, and, after paying thereout all proper and necessary commissions, charges and expenses, to pay to his wife during her life or widowhood an annuity of $8,000 of said rents, in equal quarterly payments. The rest and residue of said net rents and in-1 come were to be paid to maiden daughters of the testator’s deceased brother in equal shares during the life of the testator’s widow, with a provision that in case of the death or marriage of any of said daughters of the deceased brother, her share of said income was to go to her unmarried sisters.

By the sixth clause, the testator, upon the remarriage or death of his wife, gives, devises and bequeaths the rest, residue and remainder of his said real and personal estate, to eight of his nieces, and a nephew, particularly specified, and provides that in case any of them die before that event, leaving issue, such issue shall take its parents’ share, and in case no issue is left, the surviving brother and sisters of the one so dying shall take his or her share.

By the seventh clause' the testator authorizes and empowers his executors to sell, whenever they deem it advisable, any and all of his personal estate, and, in their discretion, to invest the same in bonds and mortgages on improved New York city real estate; or in the purchase of improved real estate, in their names as trustees under the last will and testament, or to use the same, or any part thereof, in the improvement of any real estate he may die seized of.

It also authorizes them, in their discretion, to hold and retain his personal estate, or any part of it, in the manner and form or invested at testator’s death.

He also authorizes his said executors to rent, lease or improve any part of his estate, and declares, as his intent and purpose, that his personal estate shall be converted into real estate, if it can be advantageously done.

By another clause he authorizes his executors to let his real estate and to execute leases therefor.

Lastly, he appointed Edgar S. Van Winkle and Samuel Dennison Babcock, “executors of this, my last will and testament, and trustees under the same.” By a codicil, he recites the appointment of the last named gentlemen as “executors of my said will, and trustees under the same;” and then appoints his nephew, Joel Burke Wolfe, “to be an additional executor of and trustee under my said will.”

An inspection of this will shows that there was a separaration of the functions and duties of the executors and those of the trustees, and that the duties, as executor, clearly preceded the functions to be performed by them as trustees, before the latter began, and that there was no provision for the co-existence, continuously and from the begining, of the two classes of functions and duties.

A previous decree of the surrogate directed that the executors, after making certain payments named, assign, transfer and set over to themselves, as trustees, all and ■singular, the estate so found to be remaining in their hands, to be had and holden by them, as such trustees, under the terms of said will, and upon the trusts thereby created. In pursuance of this decree, the executors did turn over and transfer to themselves, as such trustees, all such estate remaining in their hands, having finished their duties as executors, and assuming, actively and exclusively, the duties of such trustees.

Under these circumstances, we think that the trustees were entitled to the commissions claimed, and that, consequently, the order of the surrogate should be reversed, with costs and disbursements.

Van Brunt, Ch. J., and Bartlett, J., concur.  