
    (80 Misc. Rep. 473.)
    In re WEIL.
    (Surrogate’s Court, Kings County.
    April, 1913.)
    1. Tbusts (§ 316)—Accounting—Commissions.
    An accounting trustee cannot have commissions on income paid out, if there is no income on hand.
    [Ed. Note.—For other cases, see Trusts, Cent. Dig. §§ 445-459; Dec. Dig. § 316.*]
    
      2. Trusts (§ 272)—Accounting—Unapplied Income.
    An amount invested by a trustee with the principal cannot be considered as unapplied income.
    [Ed. Note.-—For other cases, see Trusts, Cent. Dig. §§ 383-385; Dec. Dig. § 272.*]
    In the matter of the judicial settlement of the account of Jean Weil, as executor of the .will of Charles Wildermann, deceased. Decree rendered.
    Wahle & Kringel, of New York City, for accountant.
    Rabe & Keller, for Elise Wildermann.
    Eugene V. Brewster, of Brooklyn, special guardian, for infants.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1S07 to date, & Rep’r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes ’
    
   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, 48 N. E. 548, 39 L. R. A. 230; Lowry v. Farmers’ Loan & Trust Co., 172 N. Y. 137, 64 N. E. 796; Robertson v. De Brulatour, 188 N. Y. 301, 80 N. E. 938; Thayer v. Burr, 201 N. Y. 155, 94 N. E. 604; Matter of Harteau, 204 N. Y. 292, 97 N. E. 726; Matter of Hoagland, 142 N. Y. Supp. 462.

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.  