
    In the Matter of the Judicial Settlement of the Account of Proceedings of John A. Todd, as Sole Surviving Executor and Trustee of and under the Last Will and Testament of Henry L. Douglas, Deceased, as Rendered by Sarah L. N. Todd, as Executrix of the Last Will and Testament of John A. Todd, Deceased. Archibald Douglas and Paul Armitage, as Substituted Trustees of the Estate of Henry L. Douglas, Deceased, and Others, Appellants; Sarah L. N. Todd, as Executrix of the Last Will and Testament of John A. Todd, Deceased, Respondent.
    
      Trusted s commissions, incase of his death leaving the trust unexecuted — effect of the trust estate not having been reduced to money.
    
    Where the survivor of two original trustees named in a will dies leaving the trust unexecuted, his estate is entitled at most to but one-half of the fees.
    
      Quaere, as to the effect, upon the right of the estate of the deceased trustee to any commissions, of the fact that the trust estate had never been reduced to money.
    Appeal by Archibald Douglas and Paul Armitage, as substituted trustees of the estate of Henry L. Douglas, deceased, and others, from an order of the Surrogate’s Court of Westchester county, entered in said Surrogate’s Court on the 22d day of December, 1900, as resettled by an order entered in said Surrogate’s Court on the 7th day of January, 1901.
    
      Paul Armitage and Archibald Douglas, appellants, in person.
    
      Anson Baldwin,, special guardian, appellant, in person.
    
      Clarence S. Davison, for the respondent.
   Woodward, J.:

Lucius T. Yale and Jolin A. Todd were executors and trustees under the provisions of the last will and testament of Henry L. Douglas who died in 1887. After completing their duties as executors Yale and Todd entered upon their duties as trustees, receiving from themselves, as executors, the corpus of the trust estate, amounting to about $96,200. On this they claimed, and were allowed, one-half of the fees provided by law. Yale died and Todd continued to administer the trust. On March 15, 1900, Todd died, leaving these trusts unexecuted, and on April 3, 1900, Archibald Douglas and Paul Armitage were appointed substituted trustees by an order of the Supreme Court. Upon a petition by the substituted trustees for an involuntary accounting of the estate property from Sarah L. FT. Todd, executrix of the deceased trustee, the latter appeared by her attorney and filed an account covering the proceedings of the deceased trustee in regard to the trust property from the time of his last accounting to-the date of his death. Subsecpiently, although no such claim was made upon the accounting, the attorney for the executrix made a motion for commissions to, the estate of said John A. Todd, deceased, upon the corpus of the estate of said Henry L. Douglas, deceased, about to be turned over to the substituted trustees,” and at the same time a motion was made to file a supplemental account. The. latter motion was denied',, and the motion for full commissions was granted. From so much of the order as grants full commissions appeal comes to this court.

This exact question appears to have been before the General Term of the first deiiartment in Palmer v. Dunham (6 N. Y. Supp. 262), and after an examination of the authorities we find no reason for disagreeing with the conclusion of the court in that case, which was that In accordance with the established procedure in this respect, half commissions were awarded to the executors of Mr. Palmer, but the other half for paying out the estate could not properly be allowed until it actually was paid out, and this, so far as he was concerned, was prevented by his death. We do not think the transfer of the property to a new trustee, which was rendered necessary by the death of the prior trustee, is such a payment as to entitle the deceased trustee’s estate to commissions on account of such payment.” Obviously the law did not contemplate that an estate was to be charged with full fees by every person who should be called in to administer a trust, nor will it be assumed that it contemplated that, substituted trustees should be called upon to perform their part of the duties without compensation. Sections 2802 and 2130 of 'the Code of Civil Procedure clearly contemplate that the estate shall be charged certain fees for the receiving and paying out of the money coming into the hands of the trustee, and while there •is. room to doubt whether Mr. Todd ever became entitled to one-half of the fees, the trust estate never having been reduced to money (McAlpine v. Potter, 126 N. Y. 285, 290), it is certain that his estate has no legal or equitable claim upon the fees for distributing the money. To permit this payment would be to entail upon the trust estate a double charge for administration, or to deny to the substituted trustees all compensation for their trouble and responsibility in the mattter, and if the latter are willing to waive the question of Mr. Todd’s right to one-half the fees, the executrix ought ■to be satisfied.

We are unable to discover that the authorities relied upon by the learned surrogate tend to disagree with the conclusion we have reached, that the order appealed from should be reversed in so far as it grants any further commissions to the estate of Mr. Todd out of the corpus of the trust estate.

The order appealed from should be reversed to the extent indicated, with the costs and disbursements to be paid by the representatives of John A. Todd, deceased.

Goodrich, P. J., Hirschberg, Jenks and Sewell, JJ., concurred.

Order reversed to the extent indicated in the opinion of Wood-' ward, J., with costs and disbursements to be paid by the representatives of John A. Todd, deceased.  