
    Peter Naylor et al., Individually and as Trustees, etc., of Peter Naylor, Resp’ts, Dec’d, v. Elizabeth N. Gale et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 17, 1893.)
    
    Trustees—Compensation of trustees.
    Commissions are to be governed by the law in force at the time of the settlement of their accounts.
    Appeal by defendant Elizabeth N. Gale from a judgment confirming the report of a referee allowing to each trustee full commissions on income computed as on annual accountings.
    
      Eustace Conway, for app’lts; Evarts, Choate & Beaman (Tread-well Cleveland, of counsel), for resp’ts.
   Yah Brunt, P. J.

This action was brought for the settlement of the accounts of the plaintiffs, as trustees of Peter Naylor, deceased, for the period since December 7, 1883, to which date their accounts had been heretofore judicially settled, and to obtain the acceptance of the resignation and discharge of the plaintiffs as trustees of said trust. There is no dispute made as to the correctness of the accounts submitted by the trustees; but exception is taken to the allowance by the referee to each of the trustees of full commissions on income computed as upon annual accountings; and it is also contended that the respondents are not trustees of the appellant, and are, therefore, not entitled to any commissions whatever. The questions sought to be raised as to the validity of the trust cannot be considered in this proceeding, as the action was simply brought to pass the accounts of the plaintiffs under the will in question. And it would be sufficient, if there were no other reason to dispose of the right of the appellant to question the validity of the trust, to say that no such issue is presented upon the papers before us. But we do not by any means intend to hold that, had the appellant attempted to raise such an issue, it could have been done in this action. The only question, therefore, to be considered is whether the referee erred in holding that each of the plaintiffs is entitled as trustee to full commissions on income computed as upon annual accountings. It is admitted that, were it not for the law of 1892, the plaintiffs would have been entitled to but one commission, and the question presented is whether, by the law of 1892, their claim has been enlarged as to income received and disbursed prior to that time.

As already suggested, the accounting in this action goes back to December, 1883. If the question were an open one, in view of the fact that trustees, unlike executors, have a right to deduct for their compensation full commissions on the income actually received before paying it over, (In re Mason, 98 N. Y., 527; In re Selleck, 111 id., 284; 19 St. Rep., 601,) and that this right accrues annually, I should incline to the opinion that the law which existed at the time their right accrued, namely, at the end of each year, should govern the right of the trustees to commissions for that year. It is true, that in the case of executors it has been frequently held that the law existing at the time of the passage of their accounts is the statute which governs in respect to their compensation, upon the ground that an executor is not entitled to any compensation until the final execution of the duties imposed upon him; and hence no right to commissions accrues until the settlement and passage of his accounts, and such is the .rule laid down in the case of Dakin v. Demming, 6 Paige, 95, and since followed. But, as already observed, in the case of a. trustee in respect to income, his right to commissions accrues annually, and he has a right annually to collect the same, and therefore it would seem that his claim for commissions accrues at the end of each year. But we think that the court of appeals in the case of Savage v. Sherman, 87 N. Y., 283,.have established a different rule, and made the rights of trustees in this respect exactly similar to those of executors. In that case, in the court below, 24 Hun, 307, it was held that the commissions of trustees were to be governed by the law in force at the time of the settlement of their accounts, and this rule was distinctly approved.

It follows, therefore, that the referee was correct, and the judgment should be affirmed, with costs.

All concur.  