Johnson v. Lawrence

or some part thereof, is undoubtedly true, but does not follow in every instance where trust duties are imposed upon an executor. Where, by the terms or true construction of the will, the two functions with their corresponding duties co-exist, and run from the death of the testator to the final discharge ; interwoven, inseparable and blended together, so that no point of time is fixed or contemplated in the testamentary intention at which one function should end and the other begin, double commissions or compensation in both capacities cannot be properly allowed. Substantially this was said in Hurlburt v. Durant ( 88 N. Y. 121 ) although it was not then attempted to decide the precise question, and the doctrine asserted is fairly deducible from the adjudged cases. In Valentine v. Valentine ( 2 Barb. Ch. 430 ) the estate consisted both of real and personal property, the former of which the executors were authorized to sell. After some general legacies, the testator directed the residue to be divided between his three sons, but one of them being a lunatic, his share was ordered to be invested, the income being made applicable to his support during life, and at his death the principal being made payable to his children in equal shares. The learned chancellor decided that the funds in the hands of the executors for the benefit of the lunatic and his children were held by them in their character of executors, and the trust and the executor-ship were inseparable. And the court added, that “ the case would have been different if the executors had been directed by the will to pay over this part of the fund to one of their number as a trustee, upon a separate and distinct trust.” Double commissions were, therefore, denied. The decision was founded upon the doctrine that the trust and the executor-ship were inseparable under the terms of the will, and the double functions and double duties were blended and coexisted to the end. The case establishes the rule, although it may not be beyond criticism as applied to the facts before the court. Drake v. Price ( 5 N. Y. 430 ) was a similar case of a trust to secure income to a daughter for life, with remainder payable to her lawful heirs; and the precedent set by the

Chancellor was followed and double commissions denied. Paige, J., however dissented, and sought to distinguish the case from Valentine v. Valentine by the observation that in that case the trust had not been assumed by the executors “ by an investment of the trust moneys, and the consequent separation ” of the trust fund from the general funds of the estate: The ground of dissent conceded the doctrine of the principal case, but went upon the theory that the trust and executor-ship were separable by the terms of the will, and that such separation had actually, and in truth, been made. And it is this view of the dissenting opinion which won our concurrence in Hurlburt v. Durant. The two earlier cases referred to were cited with apparent approval, in Hall v. Hall ( 78 N. Y. 539 ) and the difference between them drawn by the dissenting opinion of Paige, J., noted. That case further cited Lansing v. Lansing ( 45 Barb. 182 ) and Mann v. Lawrence ( 3 Bradf. 424 ), in both of which there were special trusts, but not separated from the bulk of the estate by an actual investment of specific trust funds for the sole use of the beneficiaries. The facts in Hall v. Hall showed that the testator denominated his executors, in different parts of the will trustees, and that circumstance was relied upon; but this court said that the words were used interchangeably and as synonymous, and that the bequest of the fund to the executors, and their survivors and successors, indicated rather a trust attached to the office, than imposed upon the individuals. The executors had an accounting in 1874, on which they were allowed full commissions as executors. ■ Four years later, one of the legatees, to whom income had been paid during her minority, having come of age, a final accounting was had. The executors claimed commissions as trustees on her share, although that"had never been in fact separated from the general fund in their hands, but the claim was disallowed; the chief judge saying, “ There seems to be neither authority nor reason for holding that there has been any such separation of the fund, or paying over to the appellants as trustees, or any holding by them as such, as to entitle them to the extra com

pensation denied by the surrogate.” In the course of the opinion other cases cited by the appellant were referred to. In one of them (Matter of Carman, 3 Redf. 47) there had been an accounting, and the surrogate had ordered a specific sum to be set apart and held for a beneficiary under the will, which the trustees did, opening a separate account, and taking out that specific fund from the general assets held by them as executors; and in another case it was said a final decree had discharged the executors as such and they had retained the fund as trustees as directed. Ward v. Ford (4 Redf. 45) is an example of such a case, and the surrogate there held that the will clearly created a trust in the hands of the executors, distinct and separate from their duties as such.

Taking the adjudged cases together, they appear to establish that, to entitle the same persons to commissions as executors and as trustees, the will must provide, either by express terms or by fair intendment, for the separation of the two functions and duties, one duty to precede the other and to be performed before the latter is begun, or substantially so performed ; and must not provide for the co-existence, continuously and from the beginning, of the two functions and duties; and that where the will does so provide for the separate and successive duties, that of trustee must be actually entered upon and its performance begun, either by a real severance of the trust fund from the general assets, or a judicial decree which wholly discharges the executor and leaves him acting and liable only as trustee.

An examination of the will in the present case satisfies us that the trust duties, and those of the executors, co-existed from the issue of letters testamentary down to the present action, and that no separation of such duties at any point of time was contemplated by the testator, except in one emergency, which has not yet arisen. The first clause of the will, in a very short sentence, directs the payment of debts. The second clause then proceeds to require the executors, or such of them as should qualify, “ their survivors or successors,” to

carry on witli testator’s “ estate and property ” his present business, under the firm name of Garner & Co., during the life of his wife and his daughter Florence, and that the profits beyond the sums set apart for their support should be added to the lC working capital ” of his estate. After fixing the annual sums to be paid out of income, the testator directed that, upon ■ the death of his wife' and daughter, the business should be closed, and the estate divided among his children. As some part of it consisted of real property, he gave to his executors a power of sale, and in the last clause of his will made them guardians of the estates of his children during their minority. It is apparent that from the very beginning the duties of the executors were blended inseparably with the trust duties, and were so intended to remain. There could be no trust fund as a separate and distinct entity from the general body of the estate until the final division. There was no point of time, prior' to that division, at which it could be said that one function ended and the other began. On the contrary, the ordinary duty of an executor to turn the estate into money was suspended at the outset, and in its room was put the duty of carrying on the business with all the assets on hand. That duty began at once. As a trust duty it sprang into life at the same instant with the executorship, and inextricably blended with it. It existed only by force of the official character, and could not stand without it. The business to be conducted by the executors was at once conducted as executors, and became an additional duty imposed upon them as such. The two functions were made one; were interwoven at the beginning and exercised together; and no moment was indicated by the frame of the will when one should end and the other begin. To make a division at the death of Florence was a clear duty put upon the executors. To enable them to effect that purpose they were empowered as execut es to sell the real estate and close up the business. Until th -,n the duties, blended at the beginning, were to remain unite 1, and the trust was not separate and distinct, but characterised and modified the duty of the executors. The only separa;,ion contemplated by the will

was indicated by the provision making the executors guardians of the property of the children. The wife is already dead. If now Florence should die the business would close and the division be made. But at that moment the remaining children may be minors. The shares of each will then be payable by the surviving executors to themselves as testamentary guardians, and the executors as such can be wholly discharged with all their duties ended. The existence of that possible emergency indicates the only separation of duties present in the intention of the testator, and shows how great a wrong it would be to take from this estate as commissions more than $700,000 by compensating the same persons in the threefold capacity of executors, trustees, and guardians. As in the case of Hall v. Hall, the trust duty is imposed upon the executors, their survivors or successors. As in that case, a power of sale, not yet exercised, was given to the executors to dispose of the real estate preparatory to distribution. But stronger than in that case is the conviction, which this will carries, of an intention not to impose trust duties as separate and distinct from the functions of the executors. Suppose Johnson had not died, but at that date had been removed from his office as executor. Gould we have then said that he remained trustee and might continue to manage the business and make the final distribution notwithstanding such removal? Has any point of time arrived at which, within the provisions of the will, and in the contemplation of the testator, it has become the duty of the executors to pay over to themselves as trustees the funds of this estate ? The answer to these questions is not difficult, and requires us to deny the right to the double commissions claimed.

■ But it is said, the surrogate by judicial decree has discharged the executors and made them trustees. He did not so discharge them, and could not foreclose by an opinion as to the future functions of the executors the question not before him, which is now before us. What he did, contradicts what he said, and shows how impossible it proved to be to separate duties which in their nature under the will were inseparable. On the first accounting of the executors a balance of

assets was ascertained by estimating in gross at over five millions the business value of the firm of Garner and Co. No settlement of that business conducted by the executors was in any manner had: the executors’ account was brought down only to the previous first of January: and to meet obligations of the estate they were told to retain $50,000 and hold the balance as trustees. This attempted change of capacity at that moment was purely constructive; not warranted by the will; needed for no purpose except as a foundation for double commissions. The decree wound up with an order discharging the executors “except as hereinbefore stated and directed.” Since under that exception they were still to account for receipts following the previous first of January, for thé disposition of the $50,000 and for the whole remaining bulk of the estate as yet unconverted into money and undistributed, what is called the discharge amounted to nothing more than a settlement of a part of the executors’ accounts. Soon after, they filed, what they term a supplemental account, in which they showed that as executors they had paid out, not only the $50,000 upon debts of the estate, but more than $183,000 beside; and while theoretically they did not,have the money, and the trustees who did have it were not before the court, having filed no petition that we can discover, yet the surrogate did not hesitate to order the trustees to pay to the executors the $183,-000 and all the expenses and allowances of the accounting, and so assumed and recognized that the executors still retained the estate as such, and had it before the court, and subject to its order. The alleged separation did not exist in fact, but was purely formal and constructive, and inconsistent as a theory with the real action taken. No question before the surrogate and no official duty of his gave authority to construe the effect of the will upon the future attitude of the executors. If a question of distribution had been reached, and a separate and distinct trust fund, settled and fixed in amount, had been judicially constituted, and the order obeyed by a separate holding and investment, a very different case would have been

presented. For these reasons we are of opinion that double commissions ought not to have been allowed, and the plaintiff had no cause of action.

The judgment of the ti-em ral and of .the Special Terms 'should be reversed and judgment ordered for the defendants dismissing the complaint with costs.

All concur.

Judgment accordingly.