#### In the Matter of the Judicial Settlement of the Accounts of Katharine T. Martin and Alrick H. Man, Executors, etc., of Mary J. Martin, Deceased, Respondents. Caroline M. Robinson, Appellant.

First Department,

March 13, 1908.

Executors and trustees — settlement of accounts — double commissions — principal and income.

Under a will creating two separate trusts, one setting apart a fund to provide a home for the testatrix’s unmarried daughters and the other consisting of a portion of the residuary estate for the benefit of a son, and directing that the residue be kept intact for a specified number of years, and then distributed, the executors and trustees are entitled to commissions both as executors and trustees as to the two trust funds, but hot to double commissions as to the residue.

And where the trust fund for the son was not separated and set apart until the . distribution of the estate on the eve of the accounting, so that the whole estate, with the exception of the trust fund of the daughters, was held by the personal representatives as executors, they are entitled to commissions on the income as executors only, and section 3320 of the Code of Civil Procedure does not apply. ‘

The executors are entitled to an allowance of ten, dollars per day for the time consumed in preparing the accounts under section 2562 of the Code of Civil Procedure.

Appeal by Caroline M. Robinson from certain parts of a decree of the Surrogate’s Court of the county of New York, entered in' said Surrogate’s Court on the 3d day of May, 1907.

*Charles De Hart Brower,*for the appellant.

*Hubert E. jRogers,*for the respondents.

*794Scott, J.:

This is an appeal from a part of a decree of one of the surrogates settling, the accounts of the executrix and executor of the will of Mary J. Martin, deceased. The appellant seeks to review so much of the decree as gives double commissions to the executors, and als,o objects to the amount allowed-for receiving and paying out income, and to an additional allowance under section 2562 of the Code of Civil Procedure.

Mary J. Martin died on July 26,1896. By her will she appointed the respondents her “ executors and trustees.” After providing for the payment of her debts and funeral expenses she gave, devised and bequeathed “ all my property, real, personal and mixed unto my said executors and trustees upon the following trusts.” Then' followed three subdivisions. In the' 1st subdivision she expressed the wish that her unmarried daughters and her son should live krone household, arid to that end directed her executors and trustees to keep up the home that she was living in at'her death, paying taxes, assessments, insurance and repairs during the lives of the two youngest daughters who might survive her, or during such less time as any of her unmarried daughters choose to live there, and she provided for setting apart a fund, the income from which was to be used, to keep up the house. _ It was also provided alternatively that if her unmarried daughters should choose to live elsewhere, the house should fall into the residuary estate, and a fund of $50,000 was provided to acquire and keep up another house for the use of said unmarried daughters. The 2d subdivision provided as follows: “I direct my said executors and trustees as soon as practicable'after the date of my death to set apart out of my estate a share thereof for the benefit of my son John C. Martin, which said share shall be the proportionate part which lie would receive of my estate in -view of the number of my children who may survive me, and of my children ■who may "have died before me leaving lawful issue me surviving.” This share is to be held in trust for the benefit of John C. Martin during his lifetime, and at his death to be divided among his unmarried sisters. The 3d subdivision runs as follows: “ As to all the rest, residue and remainder of my estate real, personal and mixed I direct my said executors and trustees to keep the same safely invested during the lives of the two youngest of my daughters, who *795may survive me; but not beyond the period of ten years.after the date of my death.” The net income was . to be paid in equal shares to the children of the testatrix, except her son John, and at the end of the ten years the whole trust estate was to be divided between said children except John. It appears that the house owned by the testatrix at the time of her death and referred to in above subdivision numbered 1 was sold in June 1902, and that the respondents thereupon set apart out of the proceeds the trust fund óf $50,000 provided for in said-subdivision, and if is not suggested that they are not entitled to double commissions upon that fund. Mo separation of the estate, other than the setting apart of said fund of $50,000 in 1902, was ever made until July sixth, ten years after the death of the testatrix, when the estate was distributed. The principal was distributed to the different legatees on that date, one-seventh being paid to the respondents as trustees for John C. Martin, the balance being paid over to the legatees named in the will, but prior to that date no separation of the corpus of the estate was made for the purpose of setting apart one-seventh for the benefit of John C. Martin. , The respondents never accounted as executors, either by way of a formal accounting in the Surrogate’s Court, or" by a statement in their own books of their accounts as executors, and a determination of the amount held by them as trustees. The only act they ever did to indicate that they considered, that their duties and functions as executors had ended, and those of trustees had begun was that, sometime in the year 1901 the title of their bank account was changed from “ Alrick H. Man and Katharine. T. Martin, Executors ”■ to “ Alrick H. Man and Katharine T. Martin, as trustees.” Mo new set of books was opened and no change in the existing books was made showing the transfer of the estate to the respondents as trustees, and no transfer of stocks, or bonds or mortgages of any kind was made. The will undei consideration, in so far as' it concerns that portion of the estate provided in the 3d subdivision of the 2d clause, does not- differ in any essential particular from that discussed in *McAlpine*v. *Potter*(126 N. Y. 285), wherein double commissions were denied to the executors. In the opening clause of that will the testator gave, devised and bequeathed to his trustees, as he termed them, all of his real and personal estate, in trust for the uses and purposes mentioned in the *796will, and'"directed them to retain the estate -entire and undivided until and except as'.thereinafter directed. The will directed' the payment of an' annuity tó á person named for life, and the payment óf' oné-sixt'h' of the net annual income to each of six" beneficiaries during his or her life, the annuities, however, to'cease upon the death of the surviyorof two person's named. Upon the death of the testator’s last surviving' child, or of the survivor of the two named persons, the executors were directed to cióse and distribute the estate'. There followed a: clause specifically giving and'- bequeathing all of the estate ■ to the trustees to have and to hold the same in trust for the-uses and purposes in the will' expressed. In the present case the testatrix gives hér estate to her executors and trustees upon the following trusts.” 'She then provides for the creation of a 'trust fund for the purpose of a home for her unmarried daughters, and another trust fund for the benefit of her ..son. As to the residue the executors are directed to keep it safely invested for the ■lives of the two youngest daughters, but not-longer than ten years, paying the income tb the daughter's-meanwhile, and» at the end of the period distributing the éstate. The parallel between the two wills is very close and what was said" by the Court of Appeals in the, case cited is equally applicable "to this: “ To the ordinary- duties of an executor-may be added thé performance of a. trust in such a manner that" the two functions' run on together. ■ It is the duty of an executor as such to pay to a legatee the amount of the legacy in the manner and at' the time' provided by the testator, and it does not change" that -duty that the - payment of the principal is postponed and the income made payable annually in the meantime. A trust duty may thus be imposed upon an executor. which thereby becomes' and is made a function of - his office. A will must go further than' that to admit of double commissions', and ■ must Clearly and definitely indicate an intention of the .testator to end the executor’s duty-at some point of time, and require him thereupon "to constitute and set up one ór more several trusts to be held and managed .as such for the interest of the beneficiary. * * ■* Aii' examination of the' cases in which double commissions have been allo'wed will 'show that they were exceptional in their nature ■ and contained" provisions distinctly and definitely pointing to a holding by trustee's as- such after the duties of the executors were *797completed and ended. This is not such a case and double commissions were properly withheld.” In *Matter of Slocum*(169 N. Y. 153) the Court of Appeals said : *“*There was no distinct separation in the will of the duties of executors from those of trustees. They were to hold the *corpus*of the estate until the death of both his "widow and son, and then pay and distribute it to the legatees, who should be identified by the description, contingencies and conditions specified in the will, now known to be the widow and children of the son, meantime to pay the income to the life tenants as they should prove to be entitled thereto under, the conditions of the will. There was no direction for a division of the estate into separate, funds or trusts: The main purpose of the trust powers given to the executors was to enable them conveniently, wisely and safely to place the estate upon an income-bearing basis, and so administer it that both principal and income should be distributed according to the testator’s directions. The executors have administered the estate rather than a trust fund derived from the estate. Moreover, they never had any judicial settlement of their accounts as executors,, and thus they never formally closed their ■■ accounts and duties as such, and opened 'and began them as trustees. This is their first judicial accounting and covers their entire service. Thus we have their practical construction of the situation. The authorities, we think, do not sanction double commissions in such a case.” *Olcott*v. *Baldwin*(190 N. Y. 99) is not to the contrary, for it is expressly pointed out in' the opinion that the will then under consideration differed radically from the will considered in *McAlpine*v. *Potter*and *Matter of Slocum (supra).*Applying :the principle above declared to the will in the present case it.will be found that two trusts are distinctly provided for. One in a fund of $50'000 to provide a home for the unmarried daughters, and one consisting of one-seventh of the residuary estate for the benefit of the son. These have both been set up and upon them the respondents are entitled to double commissions. As to the six-sevenths of the residue required to be kept intact for not more than ten years, and then distributed, the rule of *McAlpine*v. *Potter (supra)*applies and the respondents are entitled only to commissions as executors.

The second objection to the decree. relates to the allowance to *798the respondents' of. the commission paid to them on the income received and paid over.- The estate amounted to-considerably more than $100,000 exclusive- of the-trust fund of $50,000 intended to provide a home for the unmarried daughters. The trust fund for the son was not separated and set apart until the distribution of the estate on the eve-of the accounting, so'that, until that time, the whole ■' estate except the $50,000 fund was held by the respondents as executors. They are, therefore, entitled only to commissions as. executors,, and section 33.20 of the Code of Civil Procedure, as amended by-chapter 755 of the Laws of 1904,. .has no application. .Their commissions should be éstimatéd upon principal and income as one ' fund, each executor being entitled to full commissions. (Code Civ. Prop. § 2730.) The. allowance to the executors at the rate of ten dollars per day for the time consumed in preparing the-account was allowable under section 2562 of the-Code of Civil Procedure,-and the evidence before the surrogate -justified the allowance of the sum awarded by him. - It. follows, that -the decree must' be modified in accordance with the views herein expressed, with costs and disbursements to the appellant payable out of the estate.. The- order must, be settled on notice.. If the parties are able to agree upon a recomputation of commissions the ■ order will modify' the decree .accordingly. .If not the .matter must be remitted to the Surrogate’s Court for recomputation and. modification.

Patterson, P. L, McLai|ohlin, Laughlin. and Houghton, JJ., ■ concurred. • . . • . ..

, Decree modified as directed in opinion, with costs to appellant payable out Of the estáte; Settle order on notice. ■