
    In the Matter of the Judicial Settlement of the Account of Proceedings of Horace L. Ingersoll, as Executor, etc., of Henry S. Ingersoll, Deceased, Appellant. Horace Ingersoll, Appellant; Kate I. Walker and Harry Ingersoll and Others, Minors, Respondents.
    
      Will—a gift of the fricóme and so much of the principal as may be necessa/ry for the éducation, etc., of certain beneficiaries gives the fee — an executor’s commissions arre not forfeited by an act of discourtesy or by his failure to apply for a construction of his testator’s will. ■
    
    A testator by his will directed that one-half of his residuary estate should be held in trust and that the income and so much of the principal as should be deemed necessary should be applied to the education, maintenance and support of his grandnieces and grandnephews. The will made no other disposition of the half thus held in trust.
    
      Held, that the will operated to give the principal of the trust, fund to the beneficiaries.
    An act of discourtesy in not answering a letter written to him by a beneficiary of the estate and the failure of an executor to seek a judicial construction of the will under which he is acting are not sufficient grounds for withholding from him his statutory commissions.
    Appeal by Horace L. Ingersoll, as executor, etc., of Henry S. Ingersoll, deceased, from so much of a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 20th day of November, 1903, judicially settling the accounts of said executor, as disallows his commissions and charges him personally with the payment of certain costs.
    Also an appeal by Horace Ingersoll, the next of kin of said deceased, from that portion of the above-mentioned decree which construes the trust created in the 7th clause of the will of Henry S. Ingersoll, deceased.
    
      John J. O'Brien, for the appellant Horace L. Ingersoll.
    
      Francis B. Chedsey, for the appellant Horace Ingersoll.
    
      Frederick I. Pearsall, special guardian, for the respondents Harry Ingersoll and others.
    
      John F. Brennan, for the respondent Kate I. Walker.
   Jenks, J.:

The testator directs that one-half of the rest, residue and remainder of his estate tie held in trust, tie invested, and that the income and so much of the principal as shall he deemed necessary tie applied to the education, maintenance and support of his grandnieces and grandnephews. There is no other disposition of such moiety. I thinlc that there is á gift of the principal of that one-half to the said beneficiaries. (Earl v. Grim, 1 Johns. Ch. 494; Paterson v. Ellis, 11 Wend. 260, 298; Smith v. Post, 2 Edw. Ch. 523, 526; Hatch v. Bassett, 52 N. Y. 359, 362; Bishop v. McClelland, 44 N. J. Eq. 450; Matter of Smith, 131 N. Y. 239.) In Bishop v. McClelland (supra) the vice-chancellor says: “ There can be no doubt that a gift of the interest, income or produce of a fund, without limitation as to continuance, or without limit as to time, will, according to a settled rule of construction, be held to pass the fund itself, and this will be the effect given to a gift made in this form, whether the gift be made directly to the legatee or through the intervention- of a trustee,” citing authorities.

I think that the executor should not have been deprived of his commissions. In Matter of Rutledge (162 N. Y. 31) it was held by a closely divided court that a surrogate might, in his discretion, refuse the statutory commissions, But there was no.t such misconduct, negligence or wrongdoing as warranted the deprivation in this case. On the contrary, it appears that the executor has rendered services and has been faithful. Ho objections were filed to his account, and the special guardian reported, approving the accounts as stated. It did appear that one of the grandnieces wrote twice in 1903 to the executor, once saying that she was in need, and stating that she could use her “ portion,” and, again, inquiring whether she could get the money left to her, without receiving answers. On the hearing, the counsel for the executor stated that he claimed that the lady was married, and that her husband was able to support her, and .should do so. And when this was stated as “one of the grounds,” the learned surrogate said : “ Then I shall not allow any commissions to this executor on the statement of the counsel that he takes the position that this lady' is a married woman, and that her husband ought to support her.” The silence of the executor was discourteous. His position may have been wrong, but it was plausible in view of the reading of the will that the entire sum was to be held in sólido for the support and maintenance of five persons, and there is some authority in Woodruff v. Woodruff (54 App. Div. 414, 418) for such position. I think that the omission to seek a construction of the will is not a ground for withholding commissions otherwise earned. The imposition of costs for opening the default should not be disturbed.

The decree of the surrogate should be modified in accord with this opinion, and as modified affirmed, with costs to the special guardian out of the estate.

All concurred.

Decree of the Surrogate’s Court of Kings county modified in accordance with the opinion of Junes, J., and as modified affirmed, with costs to the special guardian out of the estate.  