In Re the Judicial Settlement of the Account of Willets

*295 Earl, J. The questions involved in this appeal were so thoroughly examined in the opinions pronounced by the surrogate and at the General Term that a lengthy statement of our views is not needful, and we will content ourselves with a brief consideration of the objections now made to the rulings and decree of the surrogate. (1.) It is claimed on the part of the appellants that by the second codicil the bequest of the residue of the annuity fund to Mrs. Leavitt was revoked. The respondents claim- that the revocation had reference to the provision made for her in the final residuary clause, and we think they are right. The language of the codicil is: “I hereby annul and revoke all of the provisions and bequests in favor of and given to her and Tier issue in the residuary clause thereof.” This language cannot with propriety be applied to the clause in the will setting apart the annuity fund, because that is not described as a residuary clause, and it is in no sense a residuary disposition of property. In that clause the annuity fund remaining after the annuities have been provided for is not directed to be divided among the grandchildren and their issue, but simply among the grandchildren who shall be living at the time of the death of the respective annuitants. But the final residuary clause provides for the payment of the income to the grandchildren during life, and after death to their lawful issue. And the codicil also speaks of the residuary fund provided for in the will. Mo other residuary fund is expressly provided for in the will, except by the final residuary clause, and the language used in the codicil is not appropriate to any other clause in the will. Hence we think the surrogate was right in confining the effect of the revocation by the codicil -to the final residuary clause, leaving all the other provisions of the will for Mrs. Levitt untouched and in full force. (2.) The appellants claim that the executors instead of ■ instituting twelve different accountings for each fund should have instituted but one proceeding for an accounting as to all the funds, and should have rendered but a single account; and that the surrogate erred in not compelling them to con *296 solídate all the accounts. We are of opinion that this claim is not well founded. It was quite appropriate that the trustees should constitute • the several trusts and keep the accounts as to each trust separate, and so they were in fact ordered to do by the decree upon their accounting as executors. We certainly can perceive no legal error on the part of the surrogate in entertaining a proceeding for a separate accounting as to each trust. Even if the trustees were not obliged m the discharge of their duties to set up the different trusts, it is certainly the most convenient and orderly way to manage the trust estates to keep them separate and deal with them as separate trusts. (3.) It is, objected that the respondents were not entitled to commissions first as executors and afterwards as trustees upon the capital of the'trust'funds. We do not think that this is a case where the two functions of executors and trustees co-exist and run from the death of the testator to a final discharge, inseparably blended together. But from the language of the will we think the duties of the respondents,' as executors, were to be first discharged, and that then they were to assume the duties of trustees, and as such manage the trust funds, to the final termination of the trusts. And so it was treated by the surrogate upon the accounting of the respondents as executors. He settled their accounts as executors and ordered them to pay to themselves as trustees the several trust funds to be held and managed by them as trustees. In such a case under the authorities of this court the respondents, their functions as executors having terminated, are entitled to further commissions as trustees. (Hurtburt v. Durant, 88 N. Y. 122; Johnson v. Lawrence, 95 id. 154; Laytin v. Davidson, Id. 263; Matter of Accounting of Mason, 98 id. 527.) (4.) The surrogate allowed to the respondents one-half commissions for receiving the trust funds from themselves as executors, and this is complained of. Being entitled to full commissions upon the trust funds, were they entitled to one-half of the commissions for receiving the same ? The statute pro *297 vides the following commissions: “ For receiving and paying ont all sums of money not exceeding one thousand dollars, at the rate of five dollars per cent. For receiving and paying out any sums exceeding one thousand dollars, and not amounting to ten thousand dollars, at the rate of two dollars and fifty cents per cent. For all sums above ten thousand dollars, at the rate of one dollar per cent.” This language received at a very early date construction in the courts, and it was held that' executors, administrators and trustees were entitled to one-half ■of their commissions for the receipt of the funds and the other half for paying out the same. (Morgan's Estate, 15 Abb. N. C. 198; Matter of Roosevelt, 5 Redf. 601.) While the commissions are allowed for all the services of the trustee, yet in the administration of the statute they have usually been divided, upon the settlement of their accounts, as above indicated ; and we think the surrogate was justified in following the general usage as approved by the courts in such cases. (5.) It is further claimed that the $400,000 set apart to raise the annuities is too large a sum, and that a portion of it should be restored to the residuary fund. It was the duty of the trustees to set apart a sufficient sum to produce the annuities, and the fund should be so large as to provide against all reasonable contingencies and to make sure that it would produce a sufficient sum to pay the annuities. The surrogate, on the accounting of the executors, determined that the $400,000 should be set aside for that purpose. That determination has never been appealed from and cannot now be reviewed or reversed upon this appeal. But even if it could be we would feel indisposed to interfere with it. If experience shall in the future demonstrate that the fund is more than sufficient to produce the annuities, the trustees are still under the con trol of the courts, and may by proper action of the surrogate or of some other court be compelled to reduce the amount and restore a portion thereof to the residuary fund. (6.) Upon the settlement of the account it appeared that the trustees had received $13,287.69 income of the annuity *298 fund, and upon that they were allowed three full commissions under section 2736 of the Code, which provides as follows : “Where the value of the personal estate of the decedent amounts to $100,000, or more, overall his debts, each executor or administrator is entitled to the full compensation allowed by law to a sole executor or administrator, unless there are more than three, in which case the compensation to which three would be entitled shall be apportioned among them according to the services rendered by them respectively; and a like apportionment shall be made in all cases where there shall be more than one executor or administrator.” And by section 2811 that section is made applicable to testamentary trustees. It is true that, in this case, the personal estate of the decedent amounted to more than $100,000, and hence, if this accounting had involved the whole of that estate, the trustees would have been entitled to three full commissions thereon to be apportioned among them. It is also true that the principal of the trust fund is nearly $400,000, and, so far as that is concerned, the commissions thereon are to be regulated by section 2736 ; but when trustees account in reference to incomes which they are required annually to pay over and account for, no matter how much the principal may be, or how much the estate of the decedent may have been, section 2736 does not apply, unless the income exceeds $100,000 ; and more than one commission can be allowed only in case the sum upon which commissions are computed amounts to at least $100,000. Having thus noticed all the material objections argued, we are of the opinion-that the decree should be modified by allowing but one commission upon the income, and, as thus modified, it should be affirmed, without costs to either party. All concur. Judgment accordingly.