Matter of Accounting of Mason

*533 Earl, J. The opinion of the surrogate in this case is so able and satisfactory that a brief expression of our views is sufficient for the present purpose. First. The nineteenth clause of the will is as follows: “ All the rest, residue and remainder of my estate, real and personal, not hereinbefore disposed of, I give, devise and bequeath unto my friends Alonzo Wynlcoop, Bradley Wynlcoop and Francis O. Mason, who are hereinafter mentioned as the executors of this my will, in equal shares.” The claim is made on behalf of'the appellants that this bequest was made to the executors as a compensation for the services which they should render in administering upon the estate. This bequest was not intended for the specific compensation mentioned in section 2737 of the Code. There is no language in the will indicating that it was meant to be in lieu of commissions. If these executors had renounced before letters were issued, they would have been entitled to receive this bequest; and if one of them, at any time after qualification, had resigned and been discharged, it would not have interfered with his right to take” his share in the bequest. The right of the residuary legatees to take under the residuary clause did not depend upon their acting and rendering services as executors; but the bequest to them was a bounty which they were entitled to receive as if they had no other connection with the will than that of legatees thereunder. Before a legacy can be held to be made in discharge of a debt, or in compensation for services to be rendered by executors, there must be language in the will from which such an intention can be inferred. Here there was none. Second. The first clause of this will is as follows: “ It is my will and I direct that all my just debts and expenses of executing this will be first paid out of my estate,” and the claim is made that, by virtue of this clause, all the expenses of administering the trusts created by the will were charged upon the residuary estate. We cannot accede to this claim. All the expenses of the executors, as such, including their commissions, were payable out of the residuary estate; and so, upon the settlement of the accounts of the respondents as executors, they *534 were charged and paid. The three trusts were expected to continue for many years, and it cannot be believed that, by the use of the language contained in the will, the testator meant that the residue of his estate should be kept on hand undivided during the whole time to answer any charge that might be brought against it for expenses connected with the trusts. It •is expressly provided that the taxes upon the trust funds shall be paid out of their income, and we find no purpose in the will to exempt such income from the burden of all the other expenses of the trust. The clause referred to is a formal, useless one, not uncommon in wills, and the construction and effect of the will would have been the same if it had been wholly omitted. We do not perceive that the eighth clause in the will gives any sanction to the claim we are now considering. In that the testator provided that his executors should obtain title to a house for Mrs. Schoomalcer, and that she might occupy it during her life, provided she would pay the taxes and the expenses of repairs and insurance upon the same., and in case she should fail to make" such payments, that then his executors should take possession of the house and rent the same, and pay her the balance of the rents, after deducting the taxes and the expenses of repáirs and insurance upon the same. This clause simply shows that the testator did not mean to burden the rest of his estate with any expenses connected with that house. We, therefore, find no intention expressed in the will that the expenses of administering the trusts, aside from the taxes, should be charged upon the residuary estate, and we think that the framework of the will is such as to show that such was not the intention of the testator. Third. But it is contended on behalf of the appellants that the executors are to act as such until all of the provisions of the will shall be fully executed, and that they cannot possess the dual character of both executors and trustees. We think the will made them both executors and trustees. They were constituted trustees of three distinct trusts. Property for those trusts was directed by the will to be set apart, and the incomes thereof paid annually to the beneficiaries. The trust funds *535 were separated by the decree of the surrogate upon the accounting in October, in 1876, when the accounts of the respondents, as executors, were fully and finally settled, and the amounts and condition of the trust funds which they were to retain for the several trusts, determined. Since that settlement the only character in which these respondents have acted is that of trustees, and they can now only be dealt with as trustees If they should die, an administrator, with the will annexed, could not be appointed, but new trustees would have to be appointed in their stead. The cases of Johnson v. Lawrence (95 N. Y. 154) and Laytin v. Davidson (id. 263), area sufficient authority for the construction we have given to this will, and further discussion of the matter is unimportant. We are, therefore, of the opinion that, in addition to the commissions which these respondents were entitled to receive as executors, they are also entitled to receive commissions, as trustees, since the rendition of their accounts in 1876 when they ceased to discharge any further duty as executors. Fourth. The respondents claimed and were allowed by the surrogate full commissions on the annual income of the trust funds; and this is now complained of as error. We are of opinion that where a trustee is required to keep trust funds invested and to receive and pay out the income annually, and he receives the income and renders an account thereof to the beneficiary, and pays over the balance of the income, after deducting all expenses chargeable against the same, he has the right to deduct for his compensation full commissions on the income annually received, before paying it over. It was so held in Fisher v. Fisher (1 Bradf. Surr. 335) and in Matter of Allen (29 Hun, 10, and 96 N. Y. 327). It has been held that where a trustee renders annual accounts to the court, or where he is required to state his account with annual rests, he is entitled to full commissions upon his annual receipts and disbursements ; and a guardian who is required by statute to file annual accounts with the surrogate each year, may, in his accounts thus filed, charge full commissions. (Morgan v. Hannas, 13 Abb. Pr. [N. S.] 361.) The same principle should be *536 applied to cases like this where the trustees receive the annual income and render an account thereof, and pay over the balance thereof to the beneficiary each year. In such case there is no occasion for a settlement before the court, and the law does not require the filing of annual accounts. If the income is received and promptly accounted for and paid over to the beneficiary, that is the end of it; any further accounting would be superfluous, a mere formality. A different rule might apply if the trustee received income which he was to accumulate, or which he allowed to accumulate in his hands for several years and then accounted for and paid over a gross sum to the beneficiary. In that case it might well be that the income for several years ought to be treated as one fund, and the commissions computed upon that. Our decision goes only so far as to hold that, where the income is annually received and annually paid over, the trustees may retain full commissions, five per cent on the first thousand, etc., as if the income received were the entire fund to be received and disposed of by them. Fifth. The surrogate held that, upon the termination of their trusts, and the full performance of their duties thereunder, the trustees would be entitled to one-half commissions upon the capital of the trust funds received by them. In this there was no error. Whenever the time shall come that the trusts are terminated and the trustees have fully discharged their duties, then they will be entitled to have one-half commissions for receiving the trust funds, and the other half for paying or turning the same over to the beneficiaries, whether the funds be then in money or choses in action. (Matter of De Peyster, 4 Sandf. Ch. 511; Ogden v. Murray, 39 N. Y. 202.) We can jjerceive no reason for allowing the trustees commissions upon the incdme and denying them commissions upon the termination of their trusts and the final settlement of their accounts, as trustees, upon the corpus of the trust estate payable out of the same': Under the authorities above cited, they are entitled, out of the trust estate, to the same commissions to which they would have been entitled if they had not also been named executors. *537 We are, therefore, of opinion that the judgment should be affirmed, with costs. All concur, except Finch, J., dissenting, and Rapallo, J., not voting. Judgment affirmed.