
    Thomas J. McKee, as Executor and Trustee, etc., of Hester G. Weeden, Deceased, Appellant, v. Edmund D. Weeden, Individually and as Executor and Trustee, etc., of Hester G. Weeden, Deceased, and Others, Respondents; Catharine E. Boyd, Appellant.
    
      Trustee — costs, how chargeable against the proceeds of sale of land, in which the trust is only interested in part—a claim for commissions after the fund, is distributed, is too late.
    
    In an action asking that instructions he given to the plaintiff as to the manner in which he should close up a trust estate created hy the will of Hester G-. Weeden it appeared that the plaintiff had bought a farm to protect the trust estate from loss, to only a portion of the proceeds of which he was entitled as trustee; that by the judgment he was authorized to sell the farm, and distribute the moneys received therefor, and was given costs which were charged upon the premises, and were directed to be paid out of, and retained by the plaintiff from, the proceeds of the sale thereof.
    The plaintiff distributed the proceeds in such a way that he had left in his hands as trustee under the will a sum of about §6,500, from which he deducted the costs.
    
      Held, that the costs were not chargeable against the moneys received by the trust estate upon such sale, but should have been deducted from the general proceeds of the sale; and that the plaintiff was not, as against the trust estate, entitled to be credited with their amount;
    That the plaintiff as trustee under the will was entitled to commissions only upon the amount in his hands as such trustee, and that he was not entitled to commissions upon the whole amount of the proceeds of the sale of the farm;
    That if he claimed to have sold the farm as a trustee for all the persons entitled to share in its proceeds he should have claimed commissions in that capacity before he distributed the moneys which he realized from such sale.
    Appeal by the plaintiff, Thomas J. McKee, as executor and trustee, etc., of Hester Gr. Weeden, deceased, and the defendant, Catharine E. Boyd, from an order of the Supreme Court in favor of certain of the defendants, dated the 4th day of June, 1894, and entered in the office of the clerk of the county of Hew York confirming the report of a referee, and settling the accounts of the plaintiff as executor and trustee under the will of Hester Gr. Weeden, deceased.
    
      WilUam R. Page and Thomas J. MoEee, for the appellants.
    
      Albert W. Seaman, Fd/mard L. Frost and John B. Mayo, for the respondents.
   RUMSEY, J.:

The plaintiff is the executor and trustee under the will of Hester Gr. Weeden, deceased. He brought this action for 'instructions as to the manner of settling up his trust, and on the Ith day of October, 1890, a judgment was entered containing directions for his action in the matter. It appeared from the judgment that he had become the owner of a farm in Jamaica, which he had bought to protect the trust estase against loss. The judgment determined that he held that farm as trustee for the purposes of the action, and. authorized him to sell it, and directed what he should, do with;..the money, a portion only of which belonged to him as trustee under: the will. He sold the land, distributed the money, and then filed a petition upon which the order was made from which this appeal is taken. But two questions are presented by it.

This action was brought to determine the right of plaintiff in the Jamaica premises and his duties in regard to them. The judgment made the following direction as to costs: “ That said plaintiff do recover of the said defendants his costs of this action, * * * and such costs are hereby charged upon the said premises, payable out of, and to be retained by said plaintiff from the proceeds of the sale thereof.”

The plaintiff, after the sale, distributed the proceeds in such a way that he had left in his hands, as trustee under the will of Hester Weeden, $6,514.13, and out of this sum he deducted the costs awarded by that portion of the judgment quoted above, and he credits himself against the trust estate with these costs, which are $629.60, and thus reduces by that amount the sum for distribution. The referee finds that the sum of $629.60 should have been deducted out of the general proceeds of the sale, and not out of the trust estate under the will, and he, therefore, disallows the credit of that amount which the plaintiff claims against the trust estate. In this we agree with the referee. The action was against all the defendants for the purpose of securing a judgment settling their rights and interests in the fund which should be derived from a sale of the premises. The judgment as above quoted charges the costs against all the defendants, and directs that they shall be retained “ from the proceeds of the sale thereof.” This the plaintiff did not do. He attempted to retain them out of the trust estate in disobedience of the plain directions of the judgment. The referee was right in not allowing this to be done, and, as to that part of his report, it is correct.

The plaintiff complains that commissions are allowed to him only upon the amount which is in his hands as trustee under the will of Hester Weeden. He says that they should be allowed upon all of the proceeds of the sale of the farm. But the fund in his hands is only the trust estate under the will. The remainder of the proceeds of the sale have been distributed pursuant to the directions contained in the judgment. Those proceeds constituted a trust fund it is true. But it was a fund for the benefit of others besides the beneficiaries under the will. The distribution of that fund as such was provided for by the judgment, and, if the trustee of that, fund claimed commissions out of it, he should have applied for them before the judgment was entered and had them allowed in it. That fund does not now exist as such. All that remains is the comparatively small portion of it which he holds as trustee under the will. It would be manifestly unjust to charge upon this fund commissions upon the proceeds of the sale, a large portion of which was. paid out for the benefit of other people.

The referee was correct upon that point also.

No other error is alleged.

The order should be affirmed, but without costs.

Van Brunt, P. J., Barrett, Williams and Patterson, JJ.r concurred.

Order affirmed, without costs.  