#### Matter of the Judicial Settlement of the Account of Proceedings of Kings County Trust Company, as Executor of and Under the Last Will and Testament of John Seton, Deceased.

(Surrogate’s Court, Kings County,

November, 1910.)

Executors and administrators — Compensation: Right to compensation and persons entitled — Right as executors or trustees: Particular services and rate and computation of amount of commissions — ‘ Computation of amount of estate — What are receipts and payments— Specific bequests or devises.

Wills — Interpretation and construction — Terms defining the nature and quality of estates or interests — Title implied in executors: , Direction to pay income.

A trust to pay the income of an estate quarterly to testator’s wife and daughter was to cease upon the death of the wife and the corpus of the trust estate was to become the property of the daughter. If the wife died before tbe testator tbe whole of the *532estate was given to the daughter and in ease of her death before the testator the wife was to receive the entire income from the trust estate during her life and upon her death the trust was to cease and the estate forming the corpus of the trust was to become the property of testator’s son. The will provided that the provisions made for the wife if accepted by her should be taken in lieu of dower but should she elect to receive dower instead of said provision then the entire net proceeds from the remaining trust estate should be paid to tlie daughter in the manner provided. The wife elected to take her dower and the daughter claimed the estate absolutely. Held, that the decree of distribution should provide that the executor transfer the trust estate to itself as trustee to be held during the life of the wife for the benefit of the daughter.

An executor, as such, is not entitled to commissions on income collected; but, if there be a trust operative during the period of sueh collections, commissions thereon can be allowed to the trustee.

Where the will directed the executor to take an inventory of the stock on hand and that upon appraisal it should form an asset of the estate and that the value of the stock as shown by the inventory should, be deducted from a gift of ten thousand dollars to the son in case he should undertake decedent’s business, the executor is entitled ts commissions on the value of said stock; but he is not entitled to commissions upon the value of goods and chattels specifically bequeathed to the son by another item of the will.

Matter of judicial settlement of the account of an executor.

George V. Brower, for executor.

Robert *W.*Maloney, for Mary Jane Seton.

Ketcham, S.

The decree of distribution should provide that the executor transfer the trust estate to itself, as trustee, to be held during the life of the wife for the benefit of the daughter.

There was a well-defined trust under which, during the life of the wife, the income was payable quarterly to the wife and daughter. Upon the death of the wife, this trust was to *“*cease and the property forming the corpus of the said trust estate was to become the property ” of the daughter. In the event of the death of the wife before the death of the testator, the provision was “ I give, devise and bequeath all *533of my property * * * to my said daughter,” etc. In the event of the death of the daughter before his death, the testator provided that the wife should “ receive the entire income from the trust estate during her life, and upon her death the trust should cease and the estate forming the corpus of the trust should become the property of the son.”

The will contained the following provision:

> " *Sixth.*I expressly declare that the provisions here made for my said wife, if accepted by her, shall be taken in lieu of dower, but should my said wife elect to receive dower out of my said property, instead of the said provision then the entire net proceeds from the remaining trust estate shall be paid to my said daughter Mary Jane Seton, in the manner above provided.”

The wife has elected to receive her dower, and it is claimed by the daughter that the estate has become hers absolutely. The language in the sixth paragraph providing for the disposition in case of the wife’s election presents a significant departure from the phrases elsewhere employed to express the testator’s intention in case of possible deaths. This contrast would indicate that in the case of the wife’s election the corpus of the estate was not intended for the daughter.

The words *“*the entire net proceeds from the remaining trust estate shall be paid to my said daughter * * * in the manner above provided,” could not be regarded as the equivalent of words devising the estate or directing its payment, without discarding as superfluous the words *“*entire net proceeds from the remaining trust,” as well as the provision for the payment “ in the manner above provided.”

The expression “ proceeds from ” suggests the testator’s conception of something not identical with the body of the trust estate but rather something to be detached from it. The word “ proceeds ” may be of doubtful meaning and may either indicate the fund itself in a transmuted form or the income or increase thereof (Words and Phrases Judicially Construed, vol. 6, *sub nom.*Proceeds) ; but if the “ proceeds ” are to be derived from the estate the estate cannot be embraced in a gift of the *“*proceeds.”

*534The executor as such is not entitled to commissions on income collected. If, as found supra, there was a trust operative during the period of these collections, it is only to the trustee that the commissions can be allowed.

It is claimed that the executor should not have commissions on certain tools, machinery and other articles mentioned in the second paragraph of the will, or upon certain stock in trade mentioned in the seventh paragraph of the will. The argument in this respect is that these chattels were specifically bequeathed to the son.

It is found that there was a specific gift of all the “ tools, machinery, utensils, fixtures, horses, wagons and other appliances ” which the decedent had in use in his business; but as to the stock on hand there was not. a specific gift.

A legacy of $10,000, which was payable, in one event in money and in the other event was payable in part with the stock on hand in the decedent’s business, at a valuation to be made by the executor, affords no ground for regarding the gift of the stock as. a specific legacy.

The only ground for excluding an executor from commissions on a specific gift is that no duty of administration falls upon him with regard to the article bequeathed. It is said that the title to the thing bequeathed vests primarily in the legatee, subject, of course, to the right of the executor to regain it, if it be needed for the payment of debts. Ear different is the case where a legacy is given soluble partly in money and partly in goods at a valuation to be ascertained by the executor.

This will directs the executor to take an inventory of the stock on hand. It provides that the articles so inventoried shall be appraised and upon appraisal shall *“*form an asset of the (my) estate,” and that the value of the stock, as shown by the inventory, shall be deducted from the gift of $10,000, in case the son shall undertake the business.

Commissions are allowed upon the value of the stock on hand and not upon the value of the goods and chattels mentioned in tlie second paragraph of the will.

Decreed accordingly.