
    Matter of the Judicial Settlement of the Accounts of Spencer Clinton et al., as Executors, etc., of Harriet A. Bennett, Deceased.
    (Surrogate’s Court, Erie County,
    February, 1896.)
    1. Executors and administrators — Trustees — Commissions.
    Testatrix devised and bequeathed all her estate to her executors as trustees to apply the income thereof, and so much of the principal as they might deem judicious, for the care, support and maintenance of her husband, with full power to use the whole of said principal for that purpose, if necessary. . No provision was made as to the disposition of any remainder. The husband died before the executors made their final accounting. Held, that as trustees they took such an estate only as was commensurate with their trust, and were entitled in that capacity only to commissions upon the amount expended for the support of the cestui que trust.
    2. Same — Unsold lands.
    No values can be estimated in order to fix commissions in advance of conversion into money, nor can commissions be allowed on unsold lands. •
    3. Same — Commissions to each, executor.
    For the purpose of determining whether the case is one in which commissions may be allowed to each executor the value of the unadministered estate may be shown, but they are entitled to no more compensation than for moneys actually received and paid out.
    Pbooeedings for judicial settlement of accounts of executors. .
    Adolph Bebadow, for Spencer Clinton and others.
    Clark H. Timmerman, for infant legatees, as special guardian.
   Marcus, S.

This is a proceeding for an accounting in which the principal questions to'be determined arise from-certain claims made by the executors and trustees for commissions under the' statute'. •

The amount involved and the question to be- considered lead me to give my reasons for reaching conclusions . hereinafter expressed.

The1 executors and trustees of this estate claim, each, to be entitled to full compensation in both capacities, on- the ground - that as trustees they became entitled under the will of decedent to charge commissions when their duties as such trustees became ended and terminated by the death of David S. Bennett; and that- since the death of David S. Bennett they became and arc entitled to charge commissions as executors; and also to be allowed commissions on the'value of certain real estate devised to them in trust and remaining unsold at the present time.

Harriet A. Bennett died on the 2d day of February, 1-894, leaving a will which was proved, and letters testamentary issued to Spencer Clinton,- Traman G-. Avery and Georgiana W. Jenks, as executors. They.entered upon the discharge of their duties and now present their account for judicial settlement.

. Ho objections - are made to the account, and the same must, therefore, be allowed as filed. -

To the claims .of the executors for commissions as trustees, the special guardian for the infant legatees-objects.

The account shows that the .personal- estate of' the .testatrix amounted to $66,299.29. Her real estate- being, the Bennett elevator,' valued at $500,000, and an income thereof since her. .death amounting to $94^606.21. -

• If the claim of the learned counsel for the executors is good, then two commissions must be allowed to each of the three executors in the' two capacities of trustees and executors," amounting' to about $36,000 for their services.

This matter has been presented and. briefs. filed upon the theory that the test alone is, in this' case, whether the duties of the offices' of executors and trustees are “ interwoven, inseparable and blended together,” or whether they were separable, distinct and not coexisting, Under it.em 3 of the will of the testatrix the following words are used: “I give, devise and bequeath all my estate, both real and personal, including all claims and demands which I may possess, not hereinbefore devised, to my executors hereinafter named, as trustees, to have and to hold the same upon the following trust: to apply the income thereof and so much of the principal thereof as, in their judgment, shall be judieious for the care, support and maintenance of my husband David S. Bennett, and I give them full power and authority to use the whole of said principal and income for. that purpose, if, in their judgment, it shall be advisable to do so to secure his happiness and comfort.” The counsel for the executors claim that they are entitled to compensation as trustees upon the proposition that this trust is separable and distinct from the administration of the estate, while the special guardian contends that the two functions seem to coexist during the whole duration of the trust; that the duties of the. executors do not cease before those of the trustees begin, and further that the will provides that the estate should go first into the hands of the executors for the purpose of carrying out items 1 and 2, and then to the trustees for the purpose of carrying out item 3, and then again into the hands of the executors for the purpose of carrying out the remainder of the provisions of the will, making the trust an incident to. the duties of the executors, which began before the commencement of the trust and continued through its whole duration, and after its determination.

In the view I take of this matter, T deem it unnecessary to determine whether the functions and duties of the executors as such on the one hand, and as trustees on the other, are separable and distinct.

The executors are not accounting as trustees. The death of' David S. Bennett, which occurred on the 6th day of November, 1894, terminated the trust, and the duties, powers and functions of the trustees thereupon ceased. Undoubtedly they would have had the right to expend the entire estate under the trust, for his benefit, if they had deemed the same judicious, for they had the authority to do so. But they did not.

The estate goes back from 'the trustees to the executors by operation of law, for the trust does not mention or direct what shall be done with the- residuum of the trust estate after the death of David S. Bennett. The trustees took title only to so much of the estate as was expended for the care and support of the cestui que trust and they are entitled to commissions pro tanto.

The estate of the trustees took priority over the estate of the executors only for the purpose of the trust, and to no greater extent,' and. the unsold lands, feeing the Bennett elevator, passed upon the termination ©f this trust to the executors.

The counsel' for the executors argues that the executors as trustees are entitled to commissions upon the entire estate comprehended by the trust if the trustees had expended but fifty cents for the cestui que trust, and he then had died before any further expenditure had been made by the trustees in his behalf. I cannot agree to such a contention. Under the common law a trustee was entitled t© no compensation, but the statute now gives commissions, but always upon the assumption that something has been done'by the trustees to entitle them to the samé, and that services of some kind were rendered.

Nowhere in the account in this case — which must fee regarded as a distinct admission of all matters stated therein — can be found a payment or transfer of any property as trustees. There are no vouchers, receipts or payments in this large account made as trustees, unless it be the small sum charged to the account of David S. Bennett, amounting to $236.26, and .the household expenses, amounting to $2,339.04. And while doubt might be expressed as to these amounts, I am satisfied to allow and recognize the expenditures of these sums by the executors in their capacity as trustees. '

• The trustees took such an estate only as was commensurate with their trust, and commissions can be computed only to such an extent.

Any other view would result in paying for services not rendered and to allow to the executors as trustees the sum of about $18,000, upon the theory that they had the right to convert the . estate comprehended by. the trust, but which they did not do, because of ample means from other sources to. maintain the cestui que trust, would be injecting life into a dead trust, with no other purpose than to enrich these executors as trustees .for services never performed..

The counsel.for the executors sought upon the hearing to esti- ! mate the value of the unsold real estate in order to fix á basis for ; computing the commissions of the trustees, and stich testimony : showed the elevator property to be worth, taking the minimum j amount given, $500,000.

The cáse of Phoenix v. Phoenix, 28 Hun, 629, cited in the brief of counsel for the executors, which held, “ In a trust of this nature,' where the entire control and management of ■ the real estate is confided to the trustees, the decisions are uniform m holding that their commissions are to be cast upon the value of the real estate, as a safe, prudent and uniform mode of ascertaining, the value of the services rendered by the trustees,” was reversed in Phoenix v. Livingstone, 101 N. Y. 451, as to the allowance of" commissions upon the value of unsold lands.

Ho values can be estimated in order to fix commissions in advance of conversion into money, nor can commissions be allowed on unsold lands.'. The mere holding of title will not be deemed, money for the purpose of computing- commissions. Estate of McLaren, 6 Misc. Rep. 483; Phoenix v. Livingstone, 101 N. Y. 451.

The rule laid down in the case of McAlpine v. Potter, 126 N. Y. 290-91, .clearly decides that no commissions can be based upon-estimated values.

Since there is nothing but unsold elevator property claimed by the trustees on which to base commissions, none could be allowed the trustees until actual conversion into -money or its-equivalent. There was “ no receiving and paying out any moneys,” which acts are essential before commissions can be allowed.

The special guardian also objects to the executors each receiving full commissions on the ground that the personal property, as-shown by the account of the executors, does not amount to $100,000, or more, over all her debts, and thus come within section 2Í36 of the Code of Civil Procedure, so that1 each of the-three executors may be entitled to full commissions.

I cannot agree with him in this contention. While it is true-that the account does hot show the personal property of the testatrix to have been of the value of $100,000, or more, yet by-adding the value of the elevator property of - which she died" seized, and which remains unsold, the total value of her property-will then largely exceed $100,000.

An examination of the will satisfies me that the testatrix directed a conversion of the elevator property. The will directs a sale of all of her real estate. The duty is obligatory, and by-virtue, of such direction, under the well-known rule of conversion, the real estate becomes personalty as of the time of her death.. Stagg v. Jackson, 1 N. Y. 212; White et al. v. Howard et al., 46 id. 162; Greenland v. Waddell et al., 116 id. 240; Redfield’s Practice, Canon of Interpretation, 14.

Although t’ 8 moneys actually received .by the executors do not' exceed $100,000, yet' for the purpose of ascertaining the value of the personal property over all debts evidence was properly given' to show that the remainder of the unadmiñistered estate will' exceed $100,000, so that the .court can determine whether, the allowance should be a full- compensation to each executor, or a full compensation to all, .but the executors are entitled to no more compensation than for moneys actually received ■md paid .out.- ■

The executors can, therefore, only -be entitled on this' accounting to commissions on. the mdneys actually received and paid out.

I, therefore, conclude to allow to each executor full commissions upon the moneys actually received and paid out, as shown by their account, and to allow a single commission in their capacity as trustees upon the amount expended in behalf of David S. Bennett. . ■

The individual claims of the .'executors against the testatrix, proved before the surrogate,. are allowed as proven.  