
    Pennington Whitehead, as Substituted Trustee of the Trust Created by the Last Will and Testament of John A. Haggerty, Deceased, for the Benefit of Anna K. Shaw, and Remaindermen, Appellant, v. Maria H. Draper and Others, Respondents.
    .First Department,
    June 11, 1909.
    Trust — substituted trustee — commissions upon the death of substituted trustee before termination óf trust — commissions on termination of trust.
    The estate of a deceased trustee is not entitled to commissions for turning over the trust fund to the substituted trustee.
    The amount of commissions allowed to testamentary trustees is governed by the law in force át the time of the settlement of their accounts.
    
      A substituted trustee is the agent of the court to execute the trust, as far as it remains unexecuted.
    Where & substituted trustee of a testamentary trust dies before the trust is fully • executed his estate is not entitled to half commissions on the whole corpus of the trust fund received by him, but only to commissions' at half the statutory rate upon the cash received by him upon taking over the trust fund and half commissions upon the moneys, which he received during his administration of the estate by the liquidation of securities constituting part of the fund received,- and which he was bound to reinvest.
    A substituted trustee who is appointed to succeed a deceased trustee, and who fully executes the trust, is entitled not only to the commissions specified above but also to a commission of one-half the statutory rate on the total fund which he has to distribute in cash or securities; that the fund is to be turned over to other testamentary trustees under the same will of whom the accounting trustee is one is immaterial.
    Appeal by the plaintiff, Pennington Whitehead, as substituted trustee, etc., from so much of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 30th day. of September, 1908, upon the report of the referee, as surcharges the plaintiff’s accounts and denies him commissions.
    
      George A. Strong, for the appellant.
    
      Francis Smyth, for the respondent Dehon.
    
      William Mitchell, for the respondents Jesse D. Bowne and others.
    
      George S. Mittendorf, for the infant respondents Codman.
    
      Ernest M. Strong, for the infant respondent Bell.
    
      William B. Bristow, for the infant respondents Bowne and Colt.
   McLaughlin, J.:

John A. Haggerty died in 1863, leaving a last will and testament, by which he divided his residuary estate into, six shares,, to .bé held in trust for six nieces named, of whom Anna K. Shaw, then Haggerty, was one, with remainder to their issue. So far as material to this appeal, the will further provided that if any of said nieces should die without issue surviving, her share Was to be divided among the survivors, share and share alike. The will was duly probated and letters testamentary issued to the two executors and trustees named therein, the sole survivor of whom died in 1894. In February, 1895, one Welcome S. Jarvis was duly appointed, by order of the Supreme Court, to carry out the trust created for the benefit of Anna K. Shaw, and following his death, the plaintiff, in December, 1898, was appointed for the same purpose, and he has continued to act as such to the present time. Jarvis never accounted, and in June, 1907, Anna K. Shaw having died, the plaintiff commenced this action to procure a settlement of his accounts and of the accounts of Jarvis — the latter’s administrator being made a party — and for the distribution of the trust estate. The judgment appealed from settled the accounts of Jarvis and.of the plaintiff,, and directed the latter to distribute the corpus of the trust in accordance with the terms of the will. The judgment was entered upon the report of a referee, to whom- the case had been referred, and the plaintiff alone appeals.

The questions involved relate solely to the commissions payable to plaintiff and to the estate of Jarvis. The corpus of the trust which came into the hands of Jarvis amounted to $60,100.34, of which $879.37 was in cash. The plaintiff paid to Jarvis’ estate $395.50 as commissions at half the statutory rate of moneys received. The referee held that, since Jarvis was a substituted trustee, he was only entitled to commissions on the amount of cash received, and surcharged plaintiff’s account with the amount of the commissions paid on securities, which he found to be $273.52. This amount should have been $373.52, but,'in view of the conclusion reached, the error is immaterial. He likewise allowed to the plaintiff for receiving the corpus of the trust half commissions on the amount received in cash only. The question thus presented ■ is whether Jarvis and the plaintiff were each entitled to receive half commissions on the whole corpus of the trust turned over to them as for money received.

The law does not contemplate .that an estate is to be charged with full commissions by every person who shall be called in to administer a trust, nor that such persons are to perform their part

óf the duties without any compensation whatever; hut' sections 2730, 2802 and 3320 of the Code of Civil Procedure clearly contemplate that an estate-shall be charged certain fees for'the receiving and paying out of moneys coming into .the hands' of persons administering a trust. (Matter of Todd, 64 App. Div. 435.) No claim is made that Jarvis’estate is entitled to commissions on the fund or cash which it turned over to the plaintiff as for moneys paid, and it could not well be because it has been held that a trustee is not entitled to. commissions for turning over the estate to his successor. (Palmer v. Dunham, 6 N. Y. Supp. 262; Matter of Todd, supra.) As was said in Attorney-General v. Continental Life Ins. Co. (32 Hun, 223) : “ It is the service or duty of collecting or gatheringjogether the fund which subjects it to a charge for commissions,, and not for succeeding to its possession after it has been thus gathered together.” The plaintiff, however, urges that his payment of commissions to the estate was proper under chapter 150' of the Laws of 1,902. While.-this statute was not passed until after Jarvis’ death,'it has been held that the commissions allowed to testamentary trustees are governed by the law in force at the time of the settlement of their accounts. (Naylor v. Gale 73 Hun, 53; Robertson v. De Brulatour, 188 N. Y. 301.) It is claimed by the respondents that this statute does not apply to the present case. Whether it does or not, the court had the power and ought, to have awarded-some compensation- for Jarvis’ services aside from what, he may have realized upon payments of income. Hpon the death of the original trustees the execution of the trust devolved upon the Supreme Court and thereafter it became its duty to appoint some one to execute the trust and invest the appointee with all or any of the powers and duties of the original trustee. (Laws of 1882, chap. 185; Pers. Prop. Law [Gen. Laws, chap. 47; Laws of 1897, chap. 417], § 8, as amd. by Laws of 1902, chap. 150; Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 20.) The court appointed Jarvis and he thereupon became its agent to execute the trust so far as it then remained unexecuted. (Wetmore v. Wetmore, 44 App. Div. 52.) He died before the trust was fully executed and then he had received neither commissions on receiving the property nor on paying it out. The court having appointed him as its agent, he should be allowed some compensation for the services which it is conceded were faithfully and efficiently rendered. It seems to me that a fair measure of such compensation is to allow his estate commissions at half the statutory rates not only upon the moneys which Came into his hands originally, but also upon the moneys which he received in the course of liis administration in the liquidation of securities which he originally received and which, as principal of the fund, lie’was bound to reinvest. It appears from the accounts that $29,920.97 was paid to him in cash upon the liquidation of such securities, and upon this amount, plus-$879.37, the cash received, making in all $30,800.34, his estáte is entitled to one-half of the statutory rates, or $249. This, deducted from the $395.50 which plaintiff has paid his estate, would leave $146.50, with which the plaintiff’s account should be surcharged.

For the same reason I think the plaintiff should have been allowed one-half the statutory commissions on not only the cash paid to him by the Jarvis estate, but also. on the cash received in the course of his administration in the liquidation of securities, which were originally received by him. The referee allowed him a commission only on the amount of cash received from the Jarvis estate. In this I think he erred. He was not only entitled to commissions for receiving the cash, as above stated, but ivas clearly entitled to commissions for paying out — that is, for distributing— the fund. The trust had terminated and the duties assigned to him by the court had been fully performed. This commission of one-half the statutory rate should be estimated on the total fund which he has to distribute in cash' or securities. (Matter of Notman, 103 App. Div. 520; Robertson v. De Brulatour, 111 id. 882; affd., 188 N. Y. 301.) It does not matter that the fund is to be turned over to trustees appointed under the will of Mr. Haggerty, or that plaintiff is one of them. So far as the trust for Anna K. Shaw is concerned, it was terminated by her death. The plaintiff has performed all the duties assigned to him by the court and nothing remains but to distribute the trust fund as directed by the will.

The judgment appealed from, therefore, should be modified as indicated in this opinion, .by allowing commissions on the cash received, and the fund distributed — the precise amount of which can be determined on the settlement of the order — and by surciiarging the plaintiff’s account with $146.50, and as thus modified the judgment should be affirmed, with disbursements of the appeal to all of the parties who filed briefs on the appeal payable out of the trust fund.

Ingraham, Laughlin, Clarke and Houghton, JJ., concurred.

Judgment modified as stated in opinion, and as modified'affirmed, with disbursements of appeal to all parties- who filed briefs, payable out of the trust fund. Settle order on notice.  