In re the Accounting of Bushe

On December 21st, 1910, letters testamentary upon the last will and testament of Frederick P.

The surrogate decided that the estate of Alpheus C. Dwight was not entitled to full commissions for receiving the amount above stated and that he had a discretionary power to fix this trustee’s compensation according to the value of the services which he had performed. In his memorandum opinion he said: “ The legal representatives of the estate of Alpheus C. Dwight, deceased, are entitled to an allowance for services actually performed for the benefit of the estate by the deceased executor and trustee of Alpheus C. Dwight, not by way of commissions but as payment for such services. * * * I have not computed the value of services of the deceased executor and trustee at full one-half commissions for receiving, where the amount has not been paid out, for' the reason that the law does not contemplate that an executor or trustee shall be entitled to commissions for the mere act of receiving property. Such commissions are allowed for the services of legal representatives in taking care of, investing and reinvesting such property and for the responsibility connected therewith. He having served after the accounting in 1913, to the time of his death,

On appeal the Appellate Division reversed the surrogate regarding these commissions and held that as a matter of law the estate of Alpheus C. Dwight was entitled to receive one-half commissions on all the principal received and on all the principal paid out and on the income received and paid out during his lifetime. The order of the Appellate Division states that this modification is made as a matter of law and not in the exercise of the court’s discretion. The trustees of the Adams estate having appealed to this court we must decide what right the estate of a testamentary trustee dying before a judicial settlement of his accounts has to compensation.

It is urged that such a trustee who does not continue until judicial accounting is entitled to no compensation; that commissions are a matter of statute and that no provision has been made by the law for such a case. Section 2753 of the Code of Civil Procedure, as amended by chapter 443 of the Laws of 1914 and by chapter 596 of the Laws of 1916, reads: “ On the settlement of the account of any executor, administrator, guardian or testamentary trustee the surrogate must allow to him ” the rates of commissions therein fixed.' These words indicate that commissions as a matter of right can only be allowed to an accounting testamentary trustee. There is nothing in the Code provisions fixing the compensation of a testamentary trustee who dies before a judicial settlement of his accounts or whose estate, he having died, is made a party to the accounting proceedings of a substituted or surviving trustee. As it has been held that a trustee is not entitled to any commissions until allowed by the court (Matter of Worthington, 141 N. Y. 9 ;

On the other hand, it is said that where a testamentary trustee dies after having received the estate and before final accounting his estate is entitled as a matter of right to one-half the statutory commissions fixed for receiving but nothing for turning over the property to his successor or survivor. This reasoning is based upon that line of authorities which hold that executors, administrators and trustees are entitled to one-half commissions for receiving funds and the other half for paying them out (Matter of Willets, 112 N. Y. 289 ), and to a practice, which is said to exist, of allowing such half commissions for receiving where the executor or trustee has died before an accounting. (Palmer v. Dunham, 6 N. Y. Supp. 262 ; affd., 125 N. Y. 68 .)

Still another view is that the surrogate or Supreme Court has discretionary power and may award or withhold commissions in certain cases; and under circumstances such as here existing, may allow such sum as is reasonable for the services of a deceased trustee, not exceeding the statutory percentage.

The reasoning to sustain this view is that the testator in selecting a trustee intended to pay him, and that he is entitled to compensation, and that commissions are allowed for the care and management of the estate and not for the simple act of receiving and paying out. (Wagstaff v. Lowerre, 23 Barb. 209 .)

All of these views have some reason to support them and perhaps some authorities, but the latter view, in our opinion, has been the general practice adopted by the courts and finds support in the decisions.

In Matter of Allen ( 96 N. Y. 327 ) a testamentary trustee had resigned and his successor had been appointed. A dispute arose over his right to compensation. This court said:

“ The testator thought proper not only to create the trust, but to require for its execution three trustees, and the law now permits compensation to persons placed in that situation, and who serve to the end of the trust without regard to the actual trouble or labor to which they have been put. (Collier v. Munn, 41 N. Y. 143 .) It is true the petitioner cannot claim on that ground. He does not intend to continue. For reasons involving no blame, he resigns, leaving the trust still existing and to be further executed by another person. Compensation, therefore, cannot be claimed as of course, and if allowed must also be measured by a, different rule from that which the law applies when the trusts created by the terms of a will, or otherwise, have been fully executed. He takes it, if at all, as one of the terms or conditions of his discharge. The court has power to award it, and within the statutory limit by which .fees are allowed to executors and trustees, its amount is discretionary.” (330.)

In Matter of Welling ( 51 App. Div. 355 , 358) it was said: “ In Matter of Rutledge ( 132 N. Y. 31 ) the Court of Appeals held that the language of section 2730 of the Code of Civil Procedure is ‘ not necessarily exclusive of all discretion in the surrogate and that its exercise should be left to him upon all the facts, in the review of which by the Appellate Division ample opportunity for correction is afforded.’ These executors stand in the shoes of their testator. (Matter of Wiley, 119 N. Y.. 642 ; Code Civ. Proc. § 2606.) Commissions are allowed to

Matter of Douglas ( 60 App. Div. 64 , 68) determined the right of an executor to compensation where he was discharged upon his own motion before the complete execution of bis trust. The court said this:

“ As to commissions, we are of the opinion that the surrogate was right in holding that the executor was not entitled to full commissions. Upon his own motion he was discharged before the final completion of the trust created in the will. Under such circumstances, he ought not to have full commissions, that is, commissions for receiving and disbursing the money which came into his hands. The surrogate allowed him one-half commissions, and this is all he was entitled to. In any view, the amount to be awarded, he having asked to be discharged before the final completion of the trust, was in the discretion of the surrogate.”

Whitehead v. Draper ( 132 App. Div. 799 , 801) determined that, a substituted trustee having died, his estate was entitled to reasonable compensation:

“ The law does not contemplate that an estate is to be charged with full commissions by every person who shall be called in to administer a trust, nor that such persons are to perform their part of the duties without any compensation whatever; but sections 2730, 2802 and 3320 of the Code of Civil Procedure clearly contemplate that an estate shall be charged certain fees for the receiving and paying out of moneys coming into the hands of persons administering a trust. * * * Upon the death of the original trustees the execution of the trust devolved upon the Supreme Court and thereafter it became its duty to appoint some one to execute the trust and invest the appointee with all or any of the powers and duties of the original trustee * * *.

No distinction should be made between the powers of the Supreme Court and those of the surrogate in dealing with the compensation of a testamentary trustee. It was held in Matter of Runk ( 200 N. Y. 447 ) that a Surrogate’s Court has power to entertain a proceeding for the judicial settlement of the accounts of a trustee appointed by the Supreme Court as the successor of a deceased testamentary trustee, and that any trustee appointed by will or other competent authority is now authorized by express legislative enactment to render his accounts to that court.

Section 2490 of the Code of Civil Procedure says of the incidental powers of the surrogate that he may proceed in all matters subject to the cognizance of his court according to the course and practice of a court having by the common law jurisdiction of such matters.

If, therefore, the Supreme Court may, in its discretion, fix the compensation of a substituted testamentary trustee such discretion must also rest with the surrogate.

There is no apparent reason for a discretionary power existing for a substituted testamentary trustee and not for a testamentary trustee who has died before- completing his work and judicial accounting. In this particular executors, administrators, testamentary trustees and substituted trustees must all be treated alike.- If the law is to approximate a science it must be uniform in similar cases.

Matter of Barker ( 186 App. Div. 317 , 325) has recently

“ There has, however, grown up in this State the judicial rule that, when a trustee ceases the performance of his duties as such, prior to complete administration of the trust estate, he is, in the discretion of the court, entitled to reasonable compensation for the services performed.”

We do not consider Matter of Todd ( 64 App. Div. 435 ), Linsly v. Bogart (67 N. Y. S. R 653) and Olcott v. Baldwin ( 190 N. Y. 99 ) as authorities to the contrary of the proposition we are here stating. The question of the surrogate’s authority to allow less than the statutory compensation was not up for decision. The fact that the statutory allowance in these and other cases was given is not the same as holding that the surrogate had no authority to allow a less amount in a proper case.

In this matter before us we do not say that it would have been improper for the surrogate to have allowed in his discretion all that has been given by the Appellate Division. The. facts are not before us and we could not pass upon them if they were. We do hold, however, that as to the compensation to the estate of Alpheus C. Dwight, the surrogate had a discretion to be reasonably exercised in view of all the circumstances and the services rendered by the said Dwight, and that having fixed the amount within the statutory limits he did not err as a matter of law.

The order of the Appellate Division should, therefore, be reversed, and the decree of the surrogate affirmed, with costs to the appellant in this court and in the Appellate Division.

Chase, Collin and Cuddeback, JJ., concur; Hiscock, Ch. J., Hogan and McLaughlin, JJ., dissent.

Order reversed, etc.