In re Garth

10 A.D. 100, 41 N.Y.S. 1022, 75 N.Y. St. Rep. 1388

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1896
• Status: Published

Opinion

Barrett, J.:

We concur in the main conclusion arrived at by the learned surrogate. The duties imposed upon the executors by the sixth clause of Mr. Spaulding’s will were not executorial. They were distinctively trust duties.- The executorial duties ended when the directions contained in the first five clauses of the will were fully executed. Thereupon the rest, residue and remainder of the estate came into being. Upon that rest, residue and remainder the trust then, for the first time, operated. It did not operate during the period of executorial duty, for the fulfillment of that duty was requisite to the ascertainment of the residue.

This is not affected by the fact that the income from the trust fund was payable from the date of the testator’s death. The creation of the trust was one thing. The period over which its operar ■tion and execution should extend was quite another. It is also contended that the trust duty might have been imposed upon the executorial office — might, in fact, have been declared to be an executorial duty. The answer is, that the testator has not so provided ; that he has created a distinct trust; that he has specified the executorial duty; and that he has devised the residue, after the -fulfillment of that duty, upon this distinct trust.

Nor is the question affected by the permission given to retain the original securities which came into the hands of the executors. That was a mere matter of detail. When the executorial duty was completed without their use, they became a part of the residuary estate. They then became a part of the trust estate. The turning over of these securities from the one account to the other may have been, as matter of fact, a mere formality. But the right to commissions under the statute depends upon fixed rules, not upon the extent of the trustee’s labor. These rules are not affected by such illustrative incidents as the appellant suggests.

We may add that the creation of the trust estate was not only affected by the terms of the will, but was judicially recognized by the surrogate’s decree of 1894. This decree, acting upon the avowedly .separate functions of the executors and trustees, directs the executors to transfer to themselves, as trustees, the corpus of the trust estate, namely, the residue found in their hands upon the executorial accounting. This was an express adjudication in a proceeding to which the appellant was a party.

The question as to Mrs. Spaulding’s right to a share of the commissions need not be specially considered, as the appellant was not prejudiced by its allowance to her executors. Mrs. Spaulding’s co-trustees have not complained. If the surrogate has allowed her representatives a share of these commissions to which her co-trustees were entitled, they alone can complain. The appellant is not harmed so long as but three full commissions in all have been allowed.

The decree of the surrogate should be affirmed, with costs.

Rumsev, O’Brien and Ingraham, JJ., concurred; Van Brunt, P. J., not voting.

Decree affirmed, with costs.