
    In the Matter of the Judicial Settlement of the Accounts of Clinton A. Haskin, as Sole Testamentary Trustee of and under the Last Will and Testament of Phebe M. Ferris, Deceased, Appellant. Ella Quinlan, Respondent.
    Fourth Department,
    March 7, 1906.
    Testamentary trustee —when entitled, to commissions;
    A testamentary trustee is, entitled to commissions when he has executed his trust, although he has tor some years paid the income to the beneficiary.without deducting his commissions, and has made no accounting, during that period. Such failure to deduct his commissions is not a waiver of his right thereto. ...
    Appeal by Clinton A. Hasldn, as sole testamentary trustee of ■ and under the last will and testament of Phebe M. Ferris, deceased, from a decree of the Surrogate’s Court of the county of Cayuga, entered in-said Surrogate’s Court on the 20th day of October, 1905, so far as the same refused commissions to the trustee upon certain moneys paid to Ellen Quinlan, a beneficiary under the will' of which the appellant is trustee.
    
      Albert H. Clark and Harry T. Dayton, for the appellant.
    
      Frank S. Wright, for the respondent.
   Kruse, J.:

By the will of Phebe M. Ferris her daughter, Ella Quinlan, was left the use of $2,000 for life. The income was directed to be paid to her semi-annually, and the principal was directed to be paid eventually to the four children of the testatrix’s son, James J. Ferris. Clinton A. Haskin wás the executor of the will and trustee of the fund. In April, 1-905, Haskin was discharged as executor after settling his accounts, and he distributed the moneys in his .hands in accordance with the decree, retaining in his hands as trustee, among other funds, the said $2,000, in accordance with the terms of the will.

The trustee paid regularly to Ella Quinlan the income from May 15, 1895, to May 15, 1904, as the will provided, in all the ■ sum of $1,140, being paid at the rate of six per cent per annum on the $2,000. Ho annual account was filed by the trustee in the Surrogate’s Court, and he never made any deductions for his commissions. He testified that he had not done so for the reason that he did not know he had such right, but supposed that would be done when a final settlement Was had and he discharged as trustee. The surrogate refused to allow him commissions on the $1,140 which he had paid to Ella Quinlan, although he still had in his hands the income from May 15, 1904, which was more than enough to pay his commissions on the $1,140, amounting to $57, upon the ground that by paying the income to her without deducting and retaining his commissions therefor the trustee had waived payment thereof.

We think, under the circumstances of this case, the trustee should have been allowed his commissions on the $1,140.

While it is now claimed that the trustee not only waived his right to these commissions, but that the surrogate was justified in withholding them upon the ground of mismanagement, the evidence shows that whatever loss had occurred in the investment of this fund was voluntarily made good by this trustee, and the surrogate expressly refrained from, making a determination that the trustee mismanaged the trust; indeed, there is no claim made by Ella Quinlan, who resisted the payment of the commissions, that she'has . not been paid the income as the will directed, and the' surrogate found that she had.been paid regularly and the whole of it on serni•annual rests. •

The-cases relied -upon by counsel for respondent (Spencer v. Spencer, 38 App. Div. 403; Matter of Haight, 51 id. 310; Conger v. Conger, 105 id. 590) we think do not support his contention. It is not sought here to subject the primary fund to the payment, of these commissions. Ho injustice will be" done the beneficiary in allowing the- trustee the commissions he has fairly earned and, as we think, is justly entitled to- receive. ■ '

■ The decree of the Surrogate’s Court, so far as it refuses to allow commissions, to the trustee on-the $1,140 paid by- him to the bene-, ficiary Ella Quinlan, should be reversed and said decree modified so as to allow the same, payable out of any moneys in the- hands of said- trustee received by him as income from said principal sum of $2,f)00, so set apart for the use of said Ella Quinlan for life, With costs of this ■ appeal to the appellant against Ella Quinlan, the respondent.

All concurred.

Decree of Surrogate’s Court, in so far as-if refuses to allow commissions to the trustee on the $1,140 paid by him to the beneficiary, Ella Quinlan, reversed, and said decree modified so as- to all'oW the same, payable out of any moneys in the hands of said trustee received by him as income from the principal sum of,$2,000 set apart for the use of said Ella Quinlan, with costs of this .appeal to the appellant against Ella Quinlan, the respondent.  