In Re the Accounting of Johnson

Yann, J. We unite with the learned courts below, in the conclusion that the respondents, as executors and trustees, managed the estate intrusted to their care with honesty, diligence and prudence. By their skill and foresight the scattered and doubtful securities were converted into safe investments, and, owing to their judicious administration, an estate which might have dwindled through hasty or imprudent action became large and flourishing. The order appealed from, in so far as it left undisturbed the acts of the respondents during their long period of service as executors and trustees, should be affirmed, but the action of the surrogate in the allowance *143 of commissions was founded upon an erroneous view of the law and requires some modification. When the respondents had discharged their duties as executors and had turned over the remaining assets to themselves as trustees of the several trusts, they ceased to administer the affairs of á single large estate and entered upon the management of five comparatively small trusts. As executors they ivere each entitled to full commissions, because “ the value of the personal property of the decedent * * * over all his debts ” amounted “ to one hundred thousand dollars, or more.” (Code Civ. Pro. § 2730.) The property, however, constructively assigned to each trust, even when increased by the aggregate income received therefrom at the date of the accounting, amounted to less than that sum. Each trust was an estate by itself, which might have been under the control of separate trustees, and the basis upon which commissions should be computed is the value of the property and income of each trust, separately considered, without reference to the property of the other trusts, or that of the original estate from which all the trusts sprang. In other words, so far as the subject of commissions is concerned, each trust to be considered as if it were the only one in charge of the respondents as trustees. The fact that the nature of the estate, owing to the uncertain value of the western mortgages, of which it was largely composed, made it unsafe to at once finally devote specific securities to each trust, did not increase the value of the proportion which, both by operation of law and the action of the respondents, belonged to each. The controlling fact, with reference to the allowance of full or only one-tliird commissions to each of the trustees, is that the estate of each trust did not amount to one hundred thousand dollars, for trustees come within range of the statute allowing commissions to executors and administrators. (Code Civ. Pro. §§ 2730, 2810.) A statute should be construed, sometimes literally and sometimes liberally, but always reasonably. If there is no reason for reading the statute otherwise than literally, that *144 should he done, hut if, under all the circumstances, a liberal construction is the more reasonable, that should be adopted. The practical working of a statute has an important bearing, “ for the legislature is presumed to have intended to do justice, unless its language compels the opposite conclusion.” (People ex rel. Beaman v. Feitner, 168 N. Y. 360, 366.) While in this case the same trustees were appointed for each of the trusts, that does not affect the meaning of the statute, which would be the same if different trustees had been selected for each trust. If each of the five trusts had had three trustees, no one of whom was a trustee of any of the other 'four, the literal construction contended for by the respondents "would entitle each of the entire fifteen trustees to full commissions, simply because the parent estate exceeded one hundred thousand dollars in value. That would he a heavier burden than the spirit of the statute permits, for it would rest upon an accident and not upon the risk and anxiety of caring for a large estate. That responsibility was assumed by the respondents, as executors, and compensation has been awarded to them accordingly. They did not, however, assume such a responsibility as trustees, for each trust was limited in amount and the risk was limited accordingly. They are entitled to the large percentages which apply to the first eleven thousand dollars of an estate, but if the different estates should be aggregated for the purpose of computing commissions, they would receive not only the full commission payable when the estate is more than one hundred thousand dollars, but in addition thereto the increased percentage multiplied' by five. (Code Civ. Pro. § 2730.) These illustrations, which might be multiplied, show that the construction contended for is unreasonable. The statute, when reasonably construed, does not mean that the value of the original estate should follow each of the separate trust estates springing therefrom, hut that each of the latter should stand by itself and the commissions to the trustees thereof should be allowed according to the value of the assets belonging exclusively thereto. Hence, each of the respondents, as trustee, was not *145 entitled to full commissions, but only to one-third thereof, and the order appealed from should be modified accordingly, and as modified affirmed, with costs to all parties, appearing by separate attorneys, payable out of the income and chargeable in equal amounts to each of the four appellants. The order, if not agreed upon by the parties, may be settled by Vann, J., on a notice of five days. Parker, Ch. J., Bartlett, Haight, Martin, Cullen and Werner, JJ., concur. Ordered accordingly.