The Surrogate.
The most interesting question for consideration in this case is the amount of commissions to which the executors are entitled. The precise point involved has never been determined by the court of appeals, nor by any court whose decision I should be obliged to regard as binding authority. Hence it becomes necessary to lay down such rule of action for future guidance in such matters, in this court, as may be deduced from the history of the subject, the statutes, and the decisions relating to them.
Formerly, in England, executors, administrators and other persons, acting in a fiduciary capacity, were allowed no compensation by way of commissions, but were allowed their necessary expenses (Perry on Trusts, § 904); and the same rule existed in this State, down to the early part of the present century (Green v. Winter, 1 Johns. [455] Ch., 37; Manning v. Manning, Id., 534); when the chancellor was authorized by the legislature to fix an allowance by way of compensation, over and above their expenses, for the services of guardians, executors and administrators, on the settlement of their accounts (Laws 1817, ch. 251). In the same year, the chancellor proceeded to fix such allowance at five per cent, on the first $1,000 (that is to say, two and one-half for receiving, and two and one-half for paying out), two and one half on any excess between $1,000 and $5,000, and one per cent, for all above the latter sum (Matter of Roberts, 3 Johns. Ch., 43, 630). Power to fix compensation to trustees was not conferred by the act, but subsequently the chancellor followed the same rule as to their compensation, where the instrument creating them fixed none. Thus the matter remained down to the adoption of the Revised Statutes, when the chancellor’s rule, in so far as executors and administrators are concerned, was made a matter of legislative enactment (3 R. S., 93, § 58). By Laws 1863, ch. 363, § 8, the compensation was increased to five per cent, on the first $1,000, two and one-half per cent, on the next $9,000, and one per cent on all sums above ten thousand. And this remains the present rate, except that each executor may, by the act of 1863, where the estate exceeds $100,000, receive full commissions.* The fact that any pay for services was at first granted, and finally advanced to its present rate, is probably due, in part, to the increased and often complicated duties imposed upon these officers by law, and by the instruments they are appointed to execute. The duties devolved upon an executor, by law, according to the ancient authorities, were, 1st, to [456] bury the deceased ; 2nd, to prove the will; 3d, to make an inventory; 4th, to collect the goods ; 5th, to pay the debts ; 6th, to pay legacies ; 7th, to distribute the residue (Jacob’s Law Dict., tit. “Executor”), and no compensation was, as has been stated, allowed him for discharging those simple duties. But as the labor, responsibility and care became greater, with the increase and general diffusion of wealth ; when testators began to clothe their executors with power to lease or sell real estate, and make the office otherwise more burdensome ; there appeared to be a necessity for granting some allowance for the services required to be performed, lest suitable persons could not be found to undertake the office. To these considerations, is probably due the legislation above recited. By Laws 1822, p. 283, § 3, incorporated in 2 R. S., 109, § 57, the Surrogate was authorized to call executors to account for proceeds of real estate, ordered by the will to be sold for the payment of debts or legacies ; and by Laws 1837, ch. 460, § 75, it was provided that, where real estate was sold by virtue of an authority contained in the will, the proceeds might be distributed under the direction of the Surrogate. Notwithstanding the conferring of this additional jurisdiction upon the Surrogate, the compensation of the executors remained as fixed by the Revised Statutes, in view of all the duties they were empowered, or directed to discharge.
It is claimed that, in this case, the executors are entitled to commissions, not only as executors, but also as trustees,—in other words, double commissions. Doubtless executors, administrators, guardians and others acting in a fiduciary capacity, are, at common law, trustees ; and since executors, in view of their powers and duties [457] as such, have their commissions fixed, they should not be permitted to receive double the amount, unless there be some provision of law plainly awarding it. It is insisted that such a provision is found in Laws 1866, ch. 115. In 1850, an act (ch. 272), precisely like that of 1866, except that it did not purport to be an amendment of any existing law, and except that it contained no provision in regard to commissions, was passed. Perhaps, in order to supply these omissions; the later law was enacted. 2 R. S., 94, § 66 (1st ed.), provided that “ The last preceding section” (declaring the effect of a final settlement .before the Surrogate) “shall-not extend to any case where an executor is liable to account to a court of equity, by reason of any trust created by any last will and testament.” Plainly, this implied that there were common law trusts, or powers in trust, over which Surrogates had jurisdiction, and also had in view the act of 1822 (2 R. S., 109, §57). The act of 1866, in question, reads as follows:
“ Section 1. The sixty-sixth section of the third article of title third of the sixth chapter of the second part of the Revised Statutes, is hereby amended so as to read as follows:
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The Surrogate.
The most interesting question for consideration in this case is the amount of commissions to which the executors are entitled. The precise point involved has never been determined by the court of appeals, nor by any court whose decision I should be obliged to regard as binding authority. Hence it becomes necessary to lay down such rule of action for future guidance in such matters, in this court, as may be deduced from the history of the subject, the statutes, and the decisions relating to them.
Formerly, in England, executors, administrators and other persons, acting in a fiduciary capacity, were allowed no compensation by way of commissions, but were allowed their necessary expenses (Perry on Trusts, § 904); and the same rule existed in this State, down to the early part of the present century (Green v. Winter, 1 Johns. [455] Ch., 37; Manning v. Manning, Id., 534); when the chancellor was authorized by the legislature to fix an allowance by way of compensation, over and above their expenses, for the services of guardians, executors and administrators, on the settlement of their accounts (Laws 1817, ch. 251). In the same year, the chancellor proceeded to fix such allowance at five per cent, on the first $1,000 (that is to say, two and one-half for receiving, and two and one-half for paying out), two and one half on any excess between $1,000 and $5,000, and one per cent, for all above the latter sum (Matter of Roberts, 3 Johns. Ch., 43, 630). Power to fix compensation to trustees was not conferred by the act, but subsequently the chancellor followed the same rule as to their compensation, where the instrument creating them fixed none. Thus the matter remained down to the adoption of the Revised Statutes, when the chancellor’s rule, in so far as executors and administrators are concerned, was made a matter of legislative enactment (3 R. S., 93, § 58). By Laws 1863, ch. 363, § 8, the compensation was increased to five per cent, on the first $1,000, two and one-half per cent, on the next $9,000, and one per cent on all sums above ten thousand. And this remains the present rate, except that each executor may, by the act of 1863, where the estate exceeds $100,000, receive full commissions.* The fact that any pay for services was at first granted, and finally advanced to its present rate, is probably due, in part, to the increased and often complicated duties imposed upon these officers by law, and by the instruments they are appointed to execute. The duties devolved upon an executor, by law, according to the ancient authorities, were, 1st, to [456] bury the deceased ; 2nd, to prove the will; 3d, to make an inventory; 4th, to collect the goods ; 5th, to pay the debts ; 6th, to pay legacies ; 7th, to distribute the residue (Jacob’s Law Dict., tit. “Executor”), and no compensation was, as has been stated, allowed him for discharging those simple duties. But as the labor, responsibility and care became greater, with the increase and general diffusion of wealth ; when testators began to clothe their executors with power to lease or sell real estate, and make the office otherwise more burdensome ; there appeared to be a necessity for granting some allowance for the services required to be performed, lest suitable persons could not be found to undertake the office. To these considerations, is probably due the legislation above recited. By Laws 1822, p. 283, § 3, incorporated in 2 R. S., 109, § 57, the Surrogate was authorized to call executors to account for proceeds of real estate, ordered by the will to be sold for the payment of debts or legacies ; and by Laws 1837, ch. 460, § 75, it was provided that, where real estate was sold by virtue of an authority contained in the will, the proceeds might be distributed under the direction of the Surrogate. Notwithstanding the conferring of this additional jurisdiction upon the Surrogate, the compensation of the executors remained as fixed by the Revised Statutes, in view of all the duties they were empowered, or directed to discharge.
It is claimed that, in this case, the executors are entitled to commissions, not only as executors, but also as trustees,—in other words, double commissions. Doubtless executors, administrators, guardians and others acting in a fiduciary capacity, are, at common law, trustees ; and since executors, in view of their powers and duties [457] as such, have their commissions fixed, they should not be permitted to receive double the amount, unless there be some provision of law plainly awarding it. It is insisted that such a provision is found in Laws 1866, ch. 115. In 1850, an act (ch. 272), precisely like that of 1866, except that it did not purport to be an amendment of any existing law, and except that it contained no provision in regard to commissions, was passed. Perhaps, in order to supply these omissions; the later law was enacted. 2 R. S., 94, § 66 (1st ed.), provided that “ The last preceding section” (declaring the effect of a final settlement .before the Surrogate) “shall-not extend to any case where an executor is liable to account to a court of equity, by reason of any trust created by any last will and testament.” Plainly, this implied that there were common law trusts, or powers in trust, over which Surrogates had jurisdiction, and also had in view the act of 1822 (2 R. S., 109, §57). The act of 1866, in question, reads as follows:
“ Section 1. The sixty-sixth section of the third article of title third of the sixth chapter of the second part of the Revised Statutes, is hereby amended so as to read as follows:
“§ 66. Any trustee created by any last will and testament, or appointed by any competent authority to execute any trust created by such last will and testament, or any executor or administrator with the will annexed, authorized to execute any such trust, may, from time to time, render and finally settle his accounts before the Surrogate.....On all such accountings of such trustees, the Surrogate before whom such accountings may be had shall allow to the trustee or [458] trustees the same compensation for his or their services by way of commissions, as are allowed by law to executors and administrators, and also sucli allowance for expenses as shall be just and reasonable. . . . .” It must be taken for granted, I think, that the object of the act of 1850 was to confer upon Surrogates powers they did not before possess, and that belonged exclusively to chancery, now the supreme court, and that that of 1866 was to authorize them to allow compensation such as the supreme court would do in such cases, and which was lacking in the act of 1850. Surely, it could not have been the design of the legislature to provide for the granting of commissions to which they were already entitled by law. It would have been a work of supererogation. I think, too, that the words “trust” and ‘‘trustee ’ ’ relate exclusively to statutory trusts over which Surrogates had then no jurisdiction, and that the act in question, in so far as additional jurisdiction and the allowance of commissions are concerned, relates exclusively to those few express trusts allowed by statute (1 R. S., 728, § 55 ; Wright v. Trustees M. E. Ch., 1 Hoff. Ch., 202, 215); that it has no relation to, or bearing upon a case where the same person or persons are clothed with power, as executors and so-called testamentary-trustees, over the same fund, and were theretofore authorized to account concerning the same before the Surrogate. Whenever the term “ testamentary trustee” is used in the new Code and elsewhere, it is only for the purpose, I take it, of distinguishing a trustee appointed by will, from one appointed by trust deed or otherwise. The word “trustee,” when employed in a statute in this connection, means solely a person author[459] ized to execute one of the trusts, and possibly one of the powers in trust, permitted by the statute. Calling him a testamentary trustee only indicates the mode of his creation.
The employment, in the act referred to, of the phrase “ administrator with the will annexed authorized to execute any such trust,” probably sprang from the fact that it was then a mooted question, whether he could execute all the powers conferred by the will upon the deceased executor.
If, however, one person be appointed execimrr, and be directed, on the completion of his duties, to hand over a remaining fund to another who is to take and hold it in a fiduciary capacity, for specified purposes, then will be presented a case for double commissions, independent, however, of the statute in question. So, if the executor die, or his letters for any reason be revoked, and an administrator with the will annexed succeed him, or an administrator de bonis non succeed to the duties of an administrator, there will be presented cases where more than the usual statutory commissions must necessarily be allowed, also without regard to that act. But where the testator creates, by his will, one of the express trusts permitted by statute, and appoints a trustee or trustees to execute it solely, then will arise a case for an accounting, and allowance of commissions and expenses, under the statute of 1866.
Where the executors are directed, or are authorized by the will to sell real estate and hold the proceeds in trust for the purposes of the will, they act throughout as executors, and the Surrogate might, before the acts of 1850 and 1866, call them to account as such. Thus, in [460] Stagg v. Jackson (2 Barb. Ch., 86 ; affi’d, 1 N. Y., 206), where the testator devised and bequeathed all his estate, real and personal, to his executors as joint tenants, in trust, to sell the same, and until such sale to receive the rents, income and profits thereof, for the purposes of the will, and upon- trust to invest, etc., and to pay certain annuities to his children until of age, then to divide the trust fund and the income into nine equal parts, to pay over three of said parts severally to each of three children, and to hold the other six parts in trust for the six remaing children ;—the chancellor held that the Surrogate had jurisdiction to take the account, the same as if the proceeds had been originally personal property (2 R. S., 109, §§ 55, 57); that the trust to receive rents was a mere incident to the direction to convert the real estate into money for the purposes of the will, and that there was, therefore, no reason to take two accounts, one before the Surrogate, and the other in the court of chancery. To the same effect, on the first point, Denne v. Judge (11 East, 288); Bogert v. Hertell (4 Hill, 492); Clark v. Clark (8 Paige, 152); Hosack v. Rogers (9 Id., 468); Valentine v. Valentine (2 Barb. Ch., 430) ; all having arisen and been determined before 1850. It necessarily follows, that, in all such cases, they can now, as formerly, receive commissions in only one capacity. By settling up as executors, and then holding a fund in trust, under the will, whether done voluntarily or by decree of the court, they do not become entitled to full double commissions on the fund:—not as executors, because retaining it for another purpose is not a “ paying out” such as entitles them to half commissions for that act (Hall v. Hall, 18 Hun, 358; affi’d, 78 N. Y., 535); [461] nor as trustees, because they hold it merely as executors. (See Dixon v. Homer, 3 Metc., 430.) In all these and the like cases, the trusts and the executorship are inseparable (Valentine v. Valentine, supra).
N or can double commissions be allowed on the handing over of the fund by one executor , or trustee to another (Jones’ case, 4 Sandf. Ch., 616; Kellogg’s case, 7 Paige, 267 ; Hosack v. Rogers; Valentine v. Valentine, supra); but they will be allowed, where the executors are directed by the will to transfer to one of their number, as trustee, to be held by him upon a separate and distinct trust (Valentine v. Valentine, supra).
Neither can an executor or trustee be allowed full commissions on annual income received and paid over, but he will be allowed one per cent., only, where he has already had, or is entitled to have full commissions on $10,000 (Valentine v. Valentine, supra; Drake v. Price, 5 N. Y., 430; Lansing v. Lansing, 45 Barb., 182); unless required, by order of the court or otherwise, to make periodical statements of his account, as was formerly provided for in the case of general guardians by the 154th Chancery Rule, and now by statute; or where annual rests are made for the purpose of compelling him to pay interest upon periodical balances, which ought to have been invested by him (Hosack v. Rogers, supra). t
Should it be claimed that the act in question was intended to embrace a trustee or donee of a power in trust, as well as a trustee created under the article “ of uses and trusts,” it may, perhaps, be conceded, provided his duties, as donee of the power, are separable from his duties as executor ; but that, I apprehend, can only be done in very rare cases. Those of Meakings v. Crom[462] well (5 N. Y., 136); Valentine v. Valentine ; Hall v. Hall (supra); Hood v. Hood (85 N. Y., 561), and others which might be cited, present instances of powers in trust so interwoven with executorial duties as to render a separation of them impracticable ; and this case is precisely like them in this respect. In all these cases there were legacies to be paid, and that duty belongs to the office of executor, and may be enforced by the Surrogate. Hence, the power to sell not being separable from the duty to pay legacies, they must be regarded as executors only. Converting the realty into money and investing it to pay legacies under the will effects no change, as they still have the legacies to pay. Hence it would be erroneous to allow them commissions as trustees, when they are not clothed with that character.
It will thus be seen that I reach a different conclusion from that arrived at by the learned Surrogate of New York, in the Matter of Pirnie (1 Tucker, 119); Cram v. Cram (2 Redf., 244); Matter of Carman (3 Id., 46); and Ward v. Ford (4 Id., 34). It is with considerable hesitation, and after a careful consideration of the whole subject, that I am led to differ from gentlemen so learned and so devoted to a conscientious and intelligent discharge of their duties. The failure of the court of appeals, in Hall v. Hall (supra), to indorse the doctrine of those cases, induced an investigation of the point. The conclusions I have reached are:
1. That the acts of 1850 and 1866 affect only cases of express trusts, and possibly powers in trust, authorized by statute, and have no bearing upon the question of commissions where the offices of executors and so-called testamentary trustees are inseparably united in [463] the same persons ; and that, where such is the case, single commissions only can be allowed.
2. That double commissions are not allowable on the transfer of the estate from one executor or trustee to another, unless such other is directed by the will to take and hold it upon a separate and distinct trust; and .that a mere closing up of their duties as executors, and retaining the fund for beneficiaries, under the will, does not operate such transfer.
3. That an executor, clothed with a power in trust, cannot be allowed full commissions on annual income received and paid over, but will be allowed one per cent, only where he has already had, or is entitled to have, full commissions on $10,000 ; except in the single and rare instance where, on an accounting, annual rests are made, for the purpose of compelling him to pay interest upon periodical balances which ought to have been invested by him.
4. That when executors, who are directed by the will to hold a fund in trust, render their account as executors and retain such fund, they can have full commissions then, and will only be entitled to one per cent, on the income thereafter received and paid over, where they have already had commissions on $10,000 or over.
The allowance of commissions in this case will be based upon the views above expressed. If the executors, as is claimed, took half commissions, at once, on receiving the .funds of the estate, on entering upon the discharge of their duties, they did what they were not authorized to do ; but I suppose that the parties, having been all cited, are concluded by the accounting of 1877.
The objection to the charging of commissions on the [464] incomes paid over, I do not consider well taken, for the reason that the will does not give the income of any specific sum to any of the life beneficiaries. The amounts to produce the incomes were uncertain.
The executors (three of them as 1 make it), each retained one per cent, on the income received and paid out. As the estate far exceeded $100,000, I think they were right in doing so, and did not thus violate the general rule, that executors have no authority to appropriate sums to their own use, as commissions, until they are allowed by the- Surrogate on the settlement of their accounts. That rule would have been applicable to the accounting of 1877.
Considering the unusual magnitude of the estate, and the nature of the numerous securities in which it was chiefly invested, I think the employment of a. clerk, at the moderate salary paid, was calculated to be beneficial, and the amount paid is allowed as a reasonable charge. ■
Notwithstanding the provisions of the will, to the effect that no securities should be sold, still I think such a sale was intended, else how could the distribution now comtemplated by its provisions be effected % Allowances out of the fund will be made on the usual affidavits.
Subsequently to delivering the foregoing opinion, the Surrogate said:
Ordinarily, courts examine and consider only the cases and statutes cited by astute and contending able counsel. That this is not always an entirely safe course for the court to pursue is exemplified in this case. After the preparation of the foregoing opinion, it has been discovered that the act of 1866, oh. 115, has been repealed, [465] leaving the act of 1850 still in force.* It is not easy to keep a careful reckoning of the kaleidescopic changes in the statute law, if the eye be withdrawn for only an instant from the steadily-revolving cylinder. The act of 1866 was the only law by which the Surrogate was authorized to allow commissions to testamentary trustees. That having been repealed as stated, there is no provision for their allowance other than may be found in the Code. Section 2811 makes several prior sections applicable to the case of the accounting of a testamentary trustee, none of which seem to, in any way, affect the question, except section 2736,—which provides that“ where the value of the personal estate of the decedent amounts to one hundred thousand dollars, or more, over all his debts, each executor or administrator is entitled to the full compensation allowed by law to a sole executor or administrator, unless there are more than three; in which case, the compensation, to which the three would be entitled, must be equally divided among them.”
While the fact of the repeal and this recent enactment do not have any particular effect upon the result reached in the opinion, as the personal estate far exceeded $100,000, yet it seems to leave the subject of commissions to such trustees wholly unprovided for, except in the single case mentioned in the section ; and it in no way affects the conclusion that an executor and trustee, whose functions are not separable, cannot have commissions in both capacities.