Matter of Petition of Allen

Danforth, J. The petitioner was one of several trustees, appointed to carry out a trust created by the will of J. S. W. Upon his petition, and for reasons satisfactory to the Supreme Court, his resignation was accepted and a successor appointed. The Special Term allowed him one-half of one per cent commissions, amounting to $1,562.15, as for receiving the capital or body of the estate; but upon appeal the General Term so modified the order as to give him, in lieu thereof, for his services as trustee, $1,064.97. It is conceded by both parties that the Supreme Court had jurisdiction to accept the resignation of trustee Allen, and discharge him from the trust, upon such terms as the rights and interests of the persons affected by the execution of it might require. Therefore, although those persons as well as the trustee appeal from the order on that petition, we do not understand that any objection is offered to that part which permits his resignation, but upon different grounds each is dissatisfied with the compensation awarded to the trustee — one because the sum is too small, the other because it was not wholly denied. It is difficult to explain the reasoning which has led to the last conclusion, for it follows a concession that the trustee was duly appointed; that-he assumed the responsibility and entered upon the discharge of the duties of his office, and has in no *330 respect failed in performance. The principal care may have devolved upon the other trustees, but this is not material. 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. Mimn, 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. Here the sum given by the General Term of the Supreme Court seems, under the circumstances of this case, a reasonable one, with which the petitioner must, at all events, be contented. If he accepts the relief asked for, he must take it upon such terms and conditions as the court thinks proper to impose (1 E. S. 130, § 69); and as those in question are not beyond its jurisdiction, they are not subject to review. The appeal of the petitioner should, therefore, be dismissed, and so far as the order is appealed from by the co-trust'ees, it must be affirmed, without costs to either party. All concur. Ordered accordingly.