#### Matter of the Judicial Settlement of the Account of John W. Harper, as Sole Surviving Executor of John Harper, Deceased.

(Surrogate’s Court, New York County,

May, 1899.)

Trustees — Commissions, not deducted when earned, aré lost.

Where an executor, acting as a testamentary trustee, pays the annual income of the trust to the beneficiaries during many successive years and fails to deduct his commissions annually, he cannot subsequently procure their allowance from the fund upon an accounting.

Proceedings upon judicial settlement of the accounts of an executor.

Adams *&*Allen, for executor.

Miller, Peckham *&*Dixon, for respondents.

Fitzgerald, S.

An examination of the evidence in this matter satisfies me that the referee has correctly found that there was *472no agreement or understanding between the trustee and the beneficiaries of the trusts, respecting which the former is now accounting, that he would waive or renounce his right to the commissions iipon the income which he has disbursed to such beneficiaries. He omitted, however, to deduct or retain from this income which had been annually received and paid out by him during many successive years, pursuant to the requirements of the will of the testator, the commissions which he was entitled to withhold upon making such annual or periodical payments, and the referee has held, that, notwithstanding this, he is now entitled to claim and be allowed such commissions. Since the filing of the report of the referee, the precise question passed upon by him has been considered by the Appellate Division of the Second Department, and a contrary view of the question has been taken by the court in its decision. Spencer v. Spencer, 38 App. Div. 403. While there are cases in which some of the language used in the opinions of the court may seem or ténd to support the conclusion which the referee reached, in none of . them was the point passed upon by him raised-or decided. In the Matter of Selleck, 111 N. Y. 284, the question was as to the right of the trustee who paid over income monthly, which he was. directed by the will to distribute as soon as it was received, to charge fúll commissions on each monthly payment of income made, and the court held that he did not have such right, but was only entitled to full commissions upon the aggregate of the income annually received and disbursed. The point presented in Naylor v. Gale, 73 Hun, 53, was whether the law which was in force at the time of their accounting and which increased the compensation of the trustees, was to govern in determining the commissions to which they were entitled, and it was decided that it was. Matter of Prentice, 25 App. Div. 209, decides that a decree was not rendered without jurisdiction, because there was not then before the court sufficient property to admit of immediate payment of the trustees-’ commissions. Matter of Allen, 29 Hu-n, 7, 10, 11; affirmed, 96 N. Y. 327, and the case of Beard v. Beard, 140 N. Y. 260, have been examined, and in neither of those cases is found any determination or expression of opinion adverse to the decision in the case of Spencer v. Spencer, *supra.*That decision I feel, compelled to regard as controlling my disposition of the question which I have been considering. The exception which has . raised it is, therefore, sustained.

Exception sustained,