
    Matter of the Estate of Joseph Pulitzer, Deceased.
    
      (Surrogates Court, New York County,
    
    
      March, 1915.)
    Executors and Administrators—Election by Executor and Trustee to Claim Regular Commissions—When Renunciation of Money Legacy Does Not Call for Revocation of Letters Testamentary.
    The fact that an executor and trustee elects to claim his regular commission by filing with the surrogate a renunciation of a money legacy given him in lieu of commissions as executor and trustee does not call for the revocation of letters testamentary to him on the ground that under the terms of the will he has, by rejecting the bequest, disqualified himself as executor and trustee.
    Proceeding for the revocation of letters testamentary and' for the removal of Frederick 27. Judson, one of the executors and trustees of the estate of Joseph Pulitzer.
    Arthur 0. Train, guardian ad litem (appointed in Supreme Court action) of Ralph Pulitzer, Jr., and for Seward Webb Pulitzer.
    George C. Holt (Charles P. Howland, of counsel), for Frederick Hewton Judson.
   Cohalan, S.

This is a proceeding for the revocation of letters testamentary and for the removal of Frederick 27. Judson, one of the executors and trustees of the estate of Joseph Pulitzer. The proceeding is brought on behalf of two infants interested in the estate by a guardian ad litem appointed for them in an action) pending in the Supreme Court for a construction of the Pulitzer will and for the settlement of the accounts of the executors and trustees of the estate. In the Supreme Court action the right of Frederick 27. Judson to commissions as executor and trustee of the estate is, or -shortly will be, at issue.

Judson was appointed an executor and trustee by a codicil of the will of Joseph Pulitzer and letters testamentary were duly issued to him and the other executors September 4, 1911. Another codicil to the will bequeathed Judson the sum of $50,000 in lieti of commissions as executor and trustee, except certain commissions upon income, which he was permitted to receive. Judson is a practicing lawyer in St. Louis. He has had charge of the Pulitzer properties in Missouri and has been diligent and, active in his duties >as executor -and trustee. At an early stage in the administration he determined to renounce the legacy of $50,000 and to elect to take his regular commissions. This decision was practically'-approved by. the other executors and trustees, and 'the formal renunciation was filed in the surrogate’s office on or about November 26, 1912. At the time of filing said renunciation section 2730, Code of Civil Procedure, provided:

“ Where the will provides a specific compensation to an executor or administrator he is not entitled to any allowance for his services, unless by a written- instrument filed with the surrogate, he renounces the specific compensation.”.

The statute contains- substantially the same provision 'applicable to trustees. -Code Civ. Pro. § 3320.

The guardian ad litem of two infant life tenants of the residuary estate has petitioned this court as a “ friend ” of the wards 'and prays for. the revocation of the letters heretofore issued to Judson on the ground that under the terms of the’ will he has disqualified himself as executor and trustee by rejecting the specific compensation bequeathed him.

The only provision of the section of the Code governing the removal-of an executor or trustee that could possibly have any bearing on the ground for removal urged herein is subdivision) 1 of section 2569, Code Civil Procedure, which is as follows-:

Where the respondent was', when appointed -or when letters were issued' to him,' or has since become incompetent, or disqualified by law to act -as such, and the grounds of the objection-did not exist, or the objection was taken by the petitioners, or a person whom he represents, before the letters were granted1 or the appointment made.”

To reach a determination on this question requires am examination of ‘the second and third codicils to the will of the decedent.

The second clause of the second codicil, dated January 17, 1910, provides as follows:

I nominate and appoint Frederick Newton Judson, of St. Louis, lawyer, and J. Angus Shaw, now in the office of the New York World, both executors and trustees of my said will, in addition to the executors and trustees named in my said will or in the codicil dated the twenty-third of March, one thousand nine hundred and nine, with like force and effect as if they had been originally named as executors and trustees, provided, however, that the said Frederick Newton Judson shall only act as executor and trustee until my son Joseph reaches the age of thirty years, and I direct that the poiver of removal given under my said will shall not extend to the executors and trustees appointed by this codicil

The third clause of the codicil provides as follows:

In case the ©aid Frederick Newton Judson and J. Angus Shaw, or either of them, shall decline to act a© executors and trustees, or, having so acted, shall either by death or disability or of his own wish, cease s'o to act, then I nominate and appoint Robert Weeks De Forest, of New York, lawyer, as executor and ■trustee of my said will in place of the said Frederick Newton Judson or J. Angus Shaw, so ceasing to act.”

The fourth clause of the codicil provides as follows:

I give and bequeath to the said Charles Evans Hughe© the sum of one hundred thousand dollars ($100,000), to the said Frederick Newton Judson the sum of fifty thousand dollars ($50,000), to the said J. Angus Shaw the like sum of fifty thousand dollars ($50,000) and to the said Robert Weeks De Forest the like sum of fifty thousand dollars ($50,000), to be received and accepted by them respectively in lieu of'commissions as executors and trustees, and I direct that no compensation or commission as such shall be paid to them except that in the case of the trusts created under my said will this provision ;shall not apply to the commissions allowed by law for receiving and paying out the income of the respective "trust funds- and I -direct that no bond or other security shall be required from them.”

Hudson having elected to claim his regular commissions- by Ms filing the reununciation of th-e specific compensation bequeathed him as above, it is contended that he has disqualified himself to act as executor and trustee under the following provisions of article VIII of the third codicil, dated May 11, 1910-:

In case Frederick H. Hudson or H. Angus Shaw o-r Robert Weeks- De Forest -shall fail to act as executor or trustee in the respective cases and under the respective limitations prescribed in said codicil of January, 1910, and in case said Harrington Putnam -shall not act in place of Charles E. Hughes, then I appoint the said Harrington Putnam to- be executor .and trustee in the place of said Hudson, Shaw or De Forest, as the case may be.”

It i-s urged that the words under the respective limitations prescribed in said codicil of Hanuary, 1910,” have reference to the limitation on the compensation of Hudson as executor and trustee; that this limitation is emphasized by the provision of the second and third codicils quoted above, providing for- the substitution of Robert Weeks De Forest and Harrington Putnam as executors and -trustees in case Hudson shall fail to act * * * under the respective limitations,” etc.

The petitioner claims that the word limitations,” as used .■above, was intended by the testator to refer to the specific bequest of $50,000 to- Hudson in lieu of commissions, and that •Hudson’s acceptance of the compensation fixed by the testator' is in the nature of a condition precedent to his- appointment and continuance in office .as executor and trustee. In this connection it is necessary to examine the will and codicils to see if, as a matter of law, the testator did actually impose such a limitation on the compensation of Judson that his qualification as executor anid trustee .and his performance of duties as such necessarily implied his irrevocable 'acceptance of the amount bequeathed him -as specific compensation.

In my opinion there is no such limitation upon Judson’s right to act as executor and trustee. Under the provisions of the will and codicils Judson- undoubtedly had the right to elect between the specific compensation bequeathed him and 'his regular commissions as executor and trustee. (Matter of Arkenburgh, 38 App. Div. 473.) If the testator intended to make Judson’s appointment conditional upon his acceptance of the limited compensation, that intention was not expressed in the clear and precise language used everywhere else in the will and codicils. I believe the only reasonable interpretation of the word “ limitations,” as used in the codicil of May 11, 1910, regarding Judson. is that the testator referred only to the fact that Judson, unlike almost all of the others- named as executors and trustees, was to serve only until testator’s son Joseph reached the age -of thirty, and was not given the power of removal like most of the others (codicil of January 17, 1910). As Judge Bartlett said in Matter of Arkenburgh (supra) : “ Persons- who make: wills are supposed to know the lawand it must be assumed that the testator knew that Judson could have acted as executor and trustee and collect the usual commissions, notwithstanding the provision for specific compensation. A perusal of the will and codicils-, and a study of the clear, precise and unambiguous language employed throughout the will and codicils make it plain that if the testator’s intention had been as asserted by the petitioner herein it would have been phrased in language whose meaning would be plain ‘and unmistakable

Decreed accordingly.  