
    New York County.
    Hon. D. G. ROLLINS, Surrogate.
    March, 1886.
    Frame v. Willets. In the matter of twelve several accountings in the estate of Samuel Willets, deceased.
    
    Testator, by his will, appointed the executors trustees of twelve several trusts thereby created for the benefit of divers specified persons for life, with respective remainders over. Seven of these were accordingly set up by the executors, who, upon their accounting as such, in 1885, were directed by the decree to pay to themselves, as trustees, moneys requisite to constitute the funds for the remaining trusts. The trustees having presented twelve accounts for separate settlement, it was objected that they were to be treated as executors, simply, and that all their proceedings might properly have been set forth in a single account and be passed upon by a single decree.—
    
      Held, that the several special proceedings were duly instituted, and that a motion for their consolidation should be denied.
    
      22'eld, also, that the accounting parties were entitled to half-commissions upon the capital of the several trusts, for receiving the same from themselves as executors.
    Testamentary trustees who have received commissions at the rate of five, and two and one half, per cent, on a fund of $10,000 or upwards, are nevertheless thereafter entitled to annual commissions, at the full rate, upon the income of each year, unless the will of their testator contains a provision inconsistent with such allowance.
    Andrews v. Goodrich, 3 Deni., 245—modified; Matter of Mason, 98 22. Y., 527—followed.
    Testator’s will established a trust fund for the payment of certain life annuities, providing that, as the annuitants severally died, such portion of the 6fund as could be spared be divided among his grandchildren living, at the time of such deaths. A codicil revoked all the provisions and bequests given to a grandchild, L., and her issue, in the residuary clause of the will.— ,
    
      Held, that L. was, nevertheless, entitled to share in the distribution of the remainders in the annuity fund.
    An objection, filed upon an accounting by trustees, to the effect that “ the trustees have not accounted for interest "on the moneys in their hands,” is too indefinite and uncertain to be regarded, and must be amended before it can be pressed.
    Hearing of objections to the accounts filed by Robert Willets and others, executors of and trustees under decedent’s will, in proceedings for judicial settlement. The facts appear sufficiently in the opinion.
    Wilson M. Powell, for accounting parties.
    
    George H. Forster, for beneficiaries.
    
   The Surrogate.

Shall these twelve accountings be consolidated into one proceeding ?

First. The testator’s will contains, among other provisions, "the provisions following :

1st It directs the persons named as his executors to hold certain specified stocks belonging to his estate during the lifetime of Sarah A. Willets, the widow of his deceased son Jacob, to apply the dividends arising therefrom to the use of said Sarah for life, and after her death to divide the proceeds of the principal fund among her children.

2nd. It directs the persons so named as executors to hold certain other specified stocks, to apply the income therefrom to the use of Cornelia A. Willets, widow of the testator’s deceased son Edward, during her life, and at her death to divide the proceeds of the principal fund among the testator’s grandchildren who shall be living at her death.”

3rd. It makes similar provision for the testator’s son Robert, so long as he shall live, and for his lawful issue after his decease.

' 4:th. It orders the periodical payment of certain sums to certain specified annuitants during their respective lives, and orders further that an amount sufficient to produce such annuities shall be set apart for that purpose.

5th. It provides that the executors shall divide the sum of $300,000 into four equal shares; that they shall invest each of such shares and apply the income arising therefrom to the following named persons respectively for life : Caroline W. Frame, Edward Willets, Frederick Willets, and Walter R. Willets, children of the testator’s deceased son Jacob; and that, on the decease of each of such beneficiaries for life, they shall pay over the principal fund of which he or she shall have theretofore enjoyed the income, “ to and among his or her lawful issue, each child taking one share,” etc.

6th. The residuary estate the testator gave, by his will, to his executors, in trust for the purposes following: To convert the same into cash, to divide the net proceeds into as many shares as there should be of his grandchildren at his death, to invest and to keep invested “ all of said shares,” to apply the interest, income and dividends of one of said shares ” to the use of Caroline W. Frame, one of such grandchildren, for her life, and from, and after her death to pay over the principal of that share to her lawful heirs ; to apply the interest, income and dividends of each of four others of said shares to each of the four other grandchildren of the testator for their respective lives, and as such life beneficiaries should respectively die, to pay the principal to his or her lawful issue.

One of the five residuary trusts thus created by the will was subsequently extinguished by a codicil. The result of this extinguishment is this : That the four persons interested for life in the four several trusts of $75,000, are the same persons who are each given a life interest in one fourth of the residuary estate. And, moreover, when the respective life interests in the $75,000 trusts and in the residuary trusts shall be extinguished, the very persons wdio will become entitled to the principal of the one will also become entitled to the principal of the other. It seems to me, therefore, that the trustees might have included in one proceeding an account of their management of the residuary trusts, and of the trusts of .$75,000, and thus have compressed eight of these accountings into four. But the special guardian of the infant remaindermen objects that, while such a course would occasion additional expense to the infants, it would result ■in no saving, but rather in a loss to the beneficiaries for life; and that the accounts should therefore be kept distinct, just as the trustees have chosen to render them. I think that his view is correct, and that JMr. Forster’s motion for a consolidation of these twelve proceedings into one, or into any other number less than twelve, must be denied. These are my reasons:

The accounts which were settled and determined by the decree of April 29th, 1885, showed that the four $75,000 trusts and the three specific trusts for Sarah A. Willets, Cornelia A. Willets, and Robert Willets, respectively, had been theretofore set-up. That decree provided that the executors, out of the assets in their hands, should pay to themselves as trustees, the sum of $400,000, the same to be held as a fund for producing the several annuities provided for by the will. It provided further that the executors should pay to themselves, as trustees of the residuary estate, the balance of principal remaining in their hands.

Now, when regard is had to the terms of the will, to the above cited provisions of the decree heretofore entered, and to the actual separation of the funds of these several trusts from all other funds of the estate, it is impossible to sustain the contention of these objectors that the persons here accounting are to be treated as executors simply, and1 that all their proceedings may properly be set forth in a single account and settled and determined by a single decree. It was, in my view, the purpose of this testator that, with the exception already noted, each of the various trusts by him created should be separate and distinct from every other, and should, after it had been once established, be managed by its trustees as independently of every other as if such other had never been created, or had been committed to other hands.

Each of the persons interested for life in the several residuary trusts, for example, could have compelled these accounting parties to do the very thing which they in fact have done—that is, to make an utter and absolute separation of the fund applicable to that particular trust from all other funds of the estate. Similarly, any one of the annuitants could have insisted upon the setting apart of a fund sufficient to produce the aggregate annuities, which fund should thenceforth be kept by itself, and be specially devoted to the special purposes of its creation. The mere fact that the testator has designated the same persons whom he has appointed his executors to act also as trustees of each and all the various trusts for which the will provides, does not make the situation practically different from what it would be if he had named A. and B. as executors, C. and D. as trustees of one or more of the trusts, and E. and F. as trustees of others (Hurlburt v. Durant, 88 N. Y., 121; Matter of Roosevelt, 5 Redf., 601; Johnson v. Lawrence, 95 N. Y., 154; Laytin v. Davidson, 95 id., 263; Matter of Mason, 98 id., 527; Phoenix v. Livingston, 101 id., 451).

I have no doubt that one or more of these accounting parties might, upon due cause being shown therefor, be removed from his office as trustee of the annuity trusts, for example, without affecting his status as executor or as a trustee of other trusts. Nor have I any doubt that, in case a vacancy shall occur in the executorship while a portion of the estate shall be still unadministered, any person who may be appointed administrator with the will annexed will be without authority to perform, as such, any of the duties that now devolve upon these accounting parties as trustees. The case at bar cannot be distinguished in these respects from the cases of Laytin v. Davidson (supra), Matter of Mason (supra), and Matter of Roosevelt (supra).

Second. It is a necessary corollary from the above proposition that the accounting parties in these several proceedings are entitled to commissions as trustees in addition to such as have been already allowed them as executors, and this, too, as regards the principal of the several funds now held by them, as well as the income received and paid out. Upon income they are entitled, in each instance, to a commission of five per cent, upon the first thousand, two and one half per cent, upon the next nine thousand, and one per cent, upon the remainder. In Andrews v. Goodrich (3 Dem., 245), the Surrogate of this county held that, where commissions at the rate of five and two and one half per cent, had been received by trustees on the corpus of a trust fund of $10,000 or upwards, only one per cent, could be allowed for receiving and paying out income; but the decision of the Court of Appeals, in the Matter of Mason (supra), has since established that, under such circumstances as here appear, trustees are entitled to annual commissions at the full rates upon the income of each year, unless in the will of their testator there is some special provision inconsistent with such allowance. I see no reason why the decree to be entered upon these accountings should not provide for the retention by the accounting parties of one half commissions for receiving the capital of the several trusts (Rowland v. Morgan 3 Dem., 289).

Third. For certain sums expended for clerk hire and for taxes upon the whole estate, including the portions carved thereout for the various trust funds, the trustees ask credit in these accounts. These disbursements are charged to the several trusts upon what is claimed to be a pro rata basis. I see no objection to the course that has here been pursued, unless the gross payments have been excessive in amounts or the apportionment of the burden has been inequitable. If either of those contentions is made, I must direct a reference.

Fourth. By his provision regarding the fund for annuitants, the testator directs that, as these annuitants shall severally die, such portion of that fund as can safely be spared “ shall be divided among my grandchildren who shall be living at the time of the death of the respective annuitants.”

It is claimed by counsel for the four grandchildren of the testator who are given a life interest in the residuary estate, that his grandchild, Amelia W. Leavitt, is excluded from sharing in this surplus of the annuity fund by the following provision in the codicil: “ In consequence of having made large and sufficient provisions, bequests and devises to my granddaughter, Amelia W. Leavitt, and her issue, in the other portions of my will, I hereby annul and revoke all the provisions and bequests given to her and her issue in the residuary clause thereof, and I hereby will and direct that my executors divide the residuary fund therein provided for into as many shares as there shall be of my grandchildren, exclusive of the said Amelia W. Leavitt,” etc.

Now, the surplus of this annuity fund is no part of the residue, and no provision for its distribution is made in the residuary clause. The will does not declare that, as such surplus shall arise, it shall fall into the residuum, but expressly directs its division among all the testator’s grandchildren then living. That direction stands unrevolced, and Mrs. Leavitt is entitled, equally with the other children, to share in the surplus (Wetmore v. Parker, 7 Lans., 121; affi’d 52 N. Y., 450, 462). Of course, the same criticism applies to .the principal of the Cornelia A. Willets trust, which is ordered, by the second article of the will, to be divided, upon her death, among the testator’s grandchildren who shall be then living.

Fifth. By the decree of April 29th, 1885, the executors were directed to proceed with the administration of certain assets still left in their hands. They were ordered to retain $110,000, to abide the result of an appeal to the Court of Appeals respecting the validity.of a provision in the will for the disposition of $100,000, and to retain $348,000 for the satisfaction of legacies to certain charitable institutions, which legacies have not yet fallen due. In the accounts now before the court, no mention is made of the action of the executors with respect to these matters, or with respect to any other matters in the management of which there are still to be exercised executorial functions. The objections to these omissions must be overruled. The accounting parties are not here undertaking to account as executors.

Sixth. I have now considered all the objections interposed to these several accounts, except the objection “ that the trustees have not accounted for interest on the moneys in their hands.” This should be made more definite. It should clearly appear whether it is meant to be claimed that the trustees have actually received interest for which they have not accounted, or that, by the diversion pf trust moneys to their own use, or by culpable neglect in making investments, or from some other cause, they have become chargeable with interest as if .they had obtained it. The objection may be amended in this regard, if counsel for the contestants wishes to press it; if not, and if a reference is not desired upon the question of clerk hire and taxes, a decree may at once be entered in accordance with this decision.  