(85 Misc. Rep. 673)

#### In re ZIEGLER’S ESTATE.

(Surrogate’s Court, New York County.

May, 1914.)

Trusts (§ 316*)—Compensation of Deceased Trustee—Commission on Disbursement.

Where, on the annual accounting of trustees, the surrogate has' passed on the accounts and published a decision settling same, and directed entry of a decree thereon, and thereafter, before signing of the decree, one trustee dies, and it appears that during his lifetime he performed all the duties of the trust except the “paying out” to be done pursuant to the decree, his estate will be allowed a full one-half of 1 per cent, commission for the “paying out” directed by the decree.

[Ed. Note.—For other cases, see Trusts, Cent. Dig. §§ 445-459; Dec. Dig. § 316.*]

Judicial settlement of the accounts of executors and trustees of the estate of William Ziegler, deceased. Decreed according to opinion.

William J. Underwood, of New York City, for executors and trustees.

Swan & Moore, of New York City (John M. Bowers, of New York City, of counsel), for William Ziegler, Jr.

Patton & Patton, of New York City, for George W. Brandt.

*

For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, *&*Rep’r Indexes

COHALAN, S.

Upon the entry of the decree settling the accounts of the executors and trustees of this estate, a novel question of considerable importance arises. This question is as to the allowance of commissions to the estate of a deceased trustee, where the administration of the estate is complete and nothing, remains to be done except the distribution pursuant to a decree to be entered.

Under the yvill of the testator, three trustees were named to carry out its provisions. After the accounts of the three trustees had been filed in this court and a decision had been made and published settling the same and directing that a decree be entered thereon, William J. Gaynor, one of the trustees, died. Thereafter the proceeding was revived and continued, with the Kings County Trust Company, as executor of the estate of the deceased trustee, William J. Gaynor, as a party. The commission in question is the one-half commission for “paying out” the fund in the hands of the trustees. It is claimed that the death of one of the trustees before the entry of the decree and before the actual “paying out” deprives that trustee of his right to commissions. However, this does not appear to be tenable. The deceased trustee has accounted and has thereby rendered himself and his estate liable for the amounts set forth in his accounts as being in- his possession as executor and trustee. He has the right to' have his estate discharged. The distributee has the right to hold him or his estate for the distribution. The decree about to be entered will settle his accounts as well as those of the surviving trustees, and his representative participates in the distribution and paying out. The law gives to executors and trustees the sums styled commissions, not simply for the performance of the ministerial acts of receiving or paying out and delivering the money, but by way of compensation for the work, care, management, *1056and responsibility in the handling of the funds, the compensation to be determined by a fixed standard—the amounts of receipts and disbursements. Matter of Wilcox, 125 App. Div. 152, 109 N. Y. Supp. 564; Collier v. Munn, 41 N. Y. 143. It is quite true, as argued by the attorneys for the beneficiary, that the executor of a deceased executor cannot administer the estate, and the cases cited by counsel all refer to pending administration and not one, as in this case, that is completed. The deceased executor and trustee had completed the administration of the estate during his lifetime, had earned his commissions or compensation, his executors are parties to the proceeding now and are necessary parties to the proceeding for the distribution, and I believe the estate of the deceased trustee is entitled to a commission of one-half of 1 per cent, on the accumulated income.

In this matter, the deceased executor and trustee had done everything possible in the administration of his trust, except the purely ministerial act of paying over the money. He was before the court, and the fund was before the court for adjudication and distribution. Suppose he had died- immediately after the signing of the decree and before the actual “paying, out.” His right to commissions in such a case would not be open to question. It would seem that the physical act of “paying out” should not be the sole test in this case.

I have signed the decree submitted and have allowed the deceased executor and trustee full commissions.

Decreed accordingly.