
    Matter of the Estate of Anna E. Tucker, Deceased.
    (Surrogate’s Court, New York County,
    December, 1899.)
    1. Executors and trustees — Double commissions refused on unsold lands of trust.
    Executors, given “ as trustees ” a residuary estate with a discretionary power of sale, directed to divide the estate into certain shares, and pay the income to certain beneficiaries for life, with remainders over, are not entitled to commissions on trust real estate which they had not sold up to the time of their accounting, as they had never had any absolute title, the unsold lands passing to the remaindermen by force of the original devise.
    53. Same — Commissions on income lost if paid over.
    Unless a trustee retains his commissions on income which he pays over, he loses them.
    3. Same — When executors are entitled to commissions as trustees.
    Double commissions may be allowed executors where their functions as such and as trustees are distinct; but the executors cannot be allowed trustees’ commissions until their first accounting as trustees.
    4. Same — Double commissions refused on unexpended income of residuary estate.
    Where a will contemplates that the income of the residuary estate shall be received by the trustees directly and never be held by them as executors, they are not entitled, when accounting as executors, to double commissions on unexpended income in their hands.
    Proceedings upon the judicial settlement of the accounts of executors and trustees.
    Louis O. .Van Doren, for executors and trustees.
    ETo other appearance.
   Varnüm, S.

The testatrix herein gave the residue of her estate to her executors and trustees as trustees,” to divide the same into three parts and to apply the income of each of such parts to the use of a grandchild for life. The trusts terminate immediately upon the death of the life beneficiaries, the remainders being directly disposed of and vested by the decedent. A discretionary power of sale is given the executors and trustees. On the settlement of the decree upon the final accounting of the executors it appears that the latter hold certain undisposed of real estate which is subject to these trust provisions. The accountants contend that under the terms of the will, an equitable conversion of this real estate has taken place, that, consequently, it must be regarded as personalty and that they should receive commissions on its value. In the case of Phœnix v. Livingston, 101 N. Y. 451, the terms of the will were very similar to those in the present case. The court pointed out that the absolute fee was never in the trustees but was given directly by the testator to the remaindermen, and hence the prior title in the trustees only existed for the purposes of the trust, so that all unsold land, at the termination of the life estates, would pass to the remaindermen not through any title derived from the trustees, but by force of the original devise. Commissions were, therefore, refused on the value of land as to which the power of sale had not been exercised. And see Roosevelt v. Van Alen, 31 App. Div. 1, 5; Matter of Clinton, 16 Misc. Rep. 199. Even if it be.assumed than an equitable conversion is worked by the will, yet no commissions are earned until the land has actually been converted. Estate of McLaren, 6 Misc. Rep. 483. The claim for these commissions must, therefore, be disallowed. The accountants also ask for commissions on the income received and paid out by them. The rule in this regard is that a trustee who pays out the income of the estate without retaining or providing for his commissions must be deemed to have waived all right thereto. Spencer v. Spencer, 38 App. Div. 403, 411, 412; Matter of Harper, 27 Misc. Rep. 471; Surr. Decs. 1899, p. 282. The accountants having failed to deduct their commissions at the proper time, it is now too late to afford them "relief. It is further contended that double commissions should be allowed for the reason, that the estate must be held by the accountants first as executors and thereafter as trustees. I am of the opinion that this contention is well founded, since the functions of the executors and trustees under the will of the decedent are unquestionably distinct and apart from each other. Laytin v. Davidson, 95 N. Y. 263. The fixing of commissions on behalf of the trustees should, however, be postponed until their first accounting in that capacity, and the decree now to be entered should only provide for commissions to the executors. So far as concerns the unexpended income in the hands of the accountants, double commissions cannot be allowed, it being the manifest intention of the testatrix that the income of her estate should be received by her trustees directly, without at any time holding it as executors. Matter of Gilbert, 25 Misc. Rep. 584. Consequently, commissions on this surplus are hereafter payable to the accountants as trustees. I have given careful consideration to the claim of the special guardian for a further allowance. While the main contention which he raised was deeided unfavorably to him, yet in view of the serious questions involved, he was thoroughly justified in litigating the matter to the great length that he did, and the fact that he was unsuccessful in upholding his views should not deprive him of a fair and reasonable compensation. I have determined to allow him the further sum of $1,000, to be paid from the incomes of his wards, the general estate having already contributed a sum equivalent to his costs. The bill of costs presented by the accountants has been taxed. Commissions should be calculated on $127,024.39. Insert allowance, costs and commissions in decree and present the same for signature.

Decreed accordingly.  