
    Matter of the Estate of Charles Kelsey, Deceased.
    (Surrogate’s Court, New York County,
    March, 1915.)
    Accounting — substituted trustee — objections to payments made under decree of court — commissions of resigning trustee deductible from corpus of trust fund — rights of remaindermen not involved.
    Objection to the payment by a substituted trustee of necessary disbursements in connection with the accounting of his predecessor and of commissions for paying over the trust fund will be overruled in the absence of an allegation that they were improperly allowed by the decree of the surrogate.
    Where under the law as it existed at the time the allowance of commissions to a resigning trustee was in the discretion of the court and having been duly allowed to the representative of the resigning trustee on the value of the trust fund and paid over to the substituted trustee they are properly deductible from the corpus of the trust fund.
    The substituted trustee not having accounted, the amount of $500 paid by it to counsel, in a proceeding on the petition of a remainderman for an accounting by the substituted trustee, should be apportioned between income and principal as follows: $125 to income and $375 to principal.
    An objection to that part of the account which described said remainderman as entitled “to a contingent remainder interest ” cannot be considered in the present proceeding as it does not involve the rights of the remainderman as the accounting was only for the purpose of showing the condition of the trust estate and payments made to the life tenants.
    Proceeding upon the account of a substituted trustee.
    Murray, Prentice & Howland (Robert H. Strahan, of counsel), for Equitable Trust Company, as substituted trustee.
    Frederic C. Scofield, for William C. Gibson.
    
      William H. Leupp, for Anna K. Barbey, life tenant.
    J. Brownson Ker, for contestant, Nellie Kelsey.
   Fowler, S.

The Equitable Trust Company of New York, as substituted trustee under the will of Charles Kelsey, deceased, having filed an account of its proceedings, and objections thereto having been filed by Nellie Kelsey, who claims an interest in the estate as remainderman, the questions raised by the objections are now before the court for determination. The facts are undisputed.

The first objection relates to payments made under a decree of this court to the trustee who was the immediate predecessor of the Equitable Trust Company. These payments were made in April, 1904, and consisted of necessary disbursements in connection with the accounting of the trustee and commissions for paying over the trust fund. It is not alleged by the objectant that the disbursements were improperly allowed by the decree of this court. The objection to the payment of these disbursements out of the trust fund will therefore be overruled. Matter of Murphy, 121 App. Div. 426.

The commissions for paying over the trust fund were allowed by the court and paid to the representative of the accounting trustee. Under the law as it existed at that time the allowance of commissions to1 a resigning trustee was in the discretion of the court. Matter of Allen, 96 N. Y. 327. Commissions having been duly allowed to the representative of the resigning trustee on the value of the trust fund paid over to the substituted trustee, they are properly deductible from the corpus of the trust fund. Woodruff v. N. Y., L. E. & W. R. R. Co., 129 N. Y. 27; Matter of Murphy, supra.

No accounting has been made by the trustee since 1904. The present accounting was filed upon the petition of Nellie Kelsey as a remainderman. Under these circumstances it seems to me that the $500 paid by the trustee to its counsel in this proceeding should be apportioned between income and principal, and that a reasonable apportionment would be $125 to income and $375 to principal.

The objection to that part of the account which describes Nellie Kelsey as entitled “to a contingent remainder interest” cannot be considered in this proceeding, as this is only an accounting by the trustee for the purpose of showing the condition of the trust estate and the payments made to the life tenants, and does not involve a determination of the rights of the remaindermen. The words used in schedule “ L ” of the account in respect to Nellie Kelsey’s interest in the estate are merely words of description; they will not be included in the decree to be entered on this accounting, and do not constitute an adjudication upon her interest in the trust estate. Upon the death of the life tenant the interest of Nellie Kelsey in the trust fund may be determined in any appropriate proceeding.

It appears from the papers submitted to me that since the filing of the account the participation mortgages to which objection was made have been disposed of, and that the proceeds have been invested in a bond and mortgage which is now held by the trustee as such. This eliminates the second and third objections to the account.

Decreed accordingly.  