In re Textor's Estate

157 N.Y.S. 848

Opinion

FOWLER, S.

The executors of decedent’s estate contend that the transfer tax appraiser erred in refusing to deduct trustees’ commissions in addition to executors’ commissions from the assets of the estate, and they have taken this appeal from the order entered upon his report.

The testatrix, after directing payment of her debts, gave a legacy of $2,000 to a legatee mentioned in the second paragraph of her will. She then directed that all the rest and residue of her estate be divided by her executors into three parts, and that these be held in trust for the benefit of certain life tenants. It is obvious that the testatrix intended that her executors should take charge of her entire estate, pay the debts and administration expenses, as well as the general legacies, and then divide the residue into three parts, and pay these parts to themselves as trustees. Their duties as executors and trustees being separate and distinct, they are entitled to commissions as trustees as well as executors. Laytin v. Davidson, 95 N. Y. 263; Olcott v. Baldwin, 190 N. Y. 99, 82 N. E. 748.

The order fixing tax will be reversed, and the appraiser’s report remitted to him for correction as indicated.