
    In the Matter of the Judicial Settlement of the Account of Jean Weil, as Executor of the Last Will and Testament of Charles Wildermann, Deceased.
    (Surrogate’s Court, Kings County,
    April, 1913.)
    Trustees — accounting by — allowance of commissions — payments.
    An accounting trustee may not be allowed commissions on income paid out if there is no income on hand.
    Where there is nothing in the account to support the suggestion, an amount put into an investment along with principal may not be considered as unapplied income.
    That the trustee has not paid over a dividend stock to the beneficiary entitled to all income is a sufficient basis for regarding said stock as principal.
    Proceeding upon the judicial settlement of the account of an executor.
    Wahle & Kringel, for accountant.
    Babe & Keller, for Elise Wildermann.
    Eugene Y. Brewster, special guardian for infants, Paul Wildermann and Carl Wildermann.
   Ketcham, S.

The accounting trustee cannot have commissions on income paid out by him if there is no income in hand.

While it is suggested in his brief that he has $2,552.32 of unapplied income, there is nothing in the account to support the suggestion and the fact that the same sum has been put into an investment along with principal has the contrary effect.

It is insisted that 250 shares of stock received by the trustee as a “ stock dividend ” is income, but beyond the description of this stock under the words “ stock dividend ” there is nothing to indicate that it was not an accretion to the principal. McLouth v. Hunt, 154 N. Y. 179; Lowry v. Farmers’ Loan & Trust Co., 172 id. 137; Robertson v. DeBrulatour, 188 id. 301; Thayer v. Burr, 201 id. 155; Matter of Harteau, 204 id. 292; Matter of Hoagland, N. Y. L. J. Feb. 13, 1912.

The character of the stock as principal or income being a question of fact, it is significant that the trustee has for years carried the stock in question with the general principal of the trust and has evidently collected the dividends upon it and paid them to the beneficiary. That he has not paid over the dividend stock to the beneficiary entitled to all the income is a sufficient basis for regarding it as principal.

The decree is made without allowance of commissions.

Decreed accordingly.  