In re the Judicial Settlement of the Account of Union Trust Co.

O’Brien, J.: The question here involved is whether the appellant, the Union. Trust Company, is entitled to commissions as trustee, having already received full commissions as . executor. . As formulated in McAlpine v. Potter (126 N. Y. 289), “ The principal question which is presented hy this appeal is whether the commissions, to be allowed are to be governed by the doctrine of Johnson v. Lawrence (95 N. Y. 154), or Laytin v. Davidson (95 id. 263).” This requires that we ' should examine those authorities and apply them to the case at bar. In Johnson v. Lawrence it was said : “ 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 có-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.” Applying this rule- -to the will under consideration, it was held that the two functions of executor and trustee co-existed from the death of the testator and the issue of letters testamentary until the final- discharge of. the jilaim tiff, and were inseparately blended, so that double commissions were not allowed. In Laytin v. Davidson (supra) it was held that -the will there in question contemplated a time when the duties of the executors as such should cease and they sho.uld assume the character exclusively of trustees, and that while the decree of settlement of their accounts did not in terms discharge the executors that was its legal effect, and as trustees they were entitled to the commissions claimed, though they had not made an actual division of the trust fund into shares, as -directed. This latter case is also authority for the proposition that it makes no difference upon the question of the right to commissions -whether it is the same person or different persons who act in the capacity -of executor and trustee. [9] The solution of the question, therefore, is to be found in the terms of the will, as to whether, in addition to the ordinary duties of administering the estate as executor, there is a point of time when such duties cease and the same or different persons are, by direction of the will, to manage the estate as trustees. The distinction between the two cases referred to consists in the fact that in Johnson v. Lawrence the plaintiffs, as they were required under the will to carry on the business of the estate and directed not to reduce the estate for the purpose of division until a certain time, acted throughout as executors, while in Laytin v. Davidson, after such time had arrived and the duties of executors had been performed, there remained the necessity for the persons named continuing in charge of the estate as trustees. To determine in what capacity one acts, it is important to keep in view what ordinarily are the duties of an executor. They are similar to those which in the event of intestacy would devolve upon an administrator. That is to say, in either capacity, the duties are to administer upon the estate by collecting and reducing to possession the assets of the estate and, after paying debts, to have the balance in hand for distribution. It is only at this point that a distinction arises, which is that an executor makes distribution under the will and an administrator under the law. The duties of an executor and those of a trustee are well defined in Drake v. Price (5 N. Y. 430), as follows: “ To take possession of all the goods and chattels, and other assets of the testator, to collect the outstanding debt and sell the goods and chattels so far as is necessary to the payment of the debts and legacies; to pay the debts and legacies, and under the order of the surrogate to distribute the surplus to the widow and children, or next of kin of the deceased. These acts embrace all the duties which appropriately belong to the executorial office. If any other duty is imposed upon the executor, or any power conferred, not appertaining to the duties above enumerated, a trust, or trust power, is created, and the executor becomes a trustee, or the donee of a trust power. And such powers are conferred and such duties imposed upon him, not as incidents to his office of executor, but as belonging to an entirely distinct character — that of trustee. And in all such cases the trust and executorship are distinguishable and separate.” [10] In the case at bar we think the will imposed on the trust company duties other than those appertaining to an executorship, assuming, what in our view is implied — that upon. the completion of the executorial duties, the duties of- trustee were to commence, for it will be noted in this connection that the trust created is of the residuary estate which can be ascertained only after the completion of the work of the executor. Ordinarily the duties devolving upon an executor include, as stated, paying debts and legacies, and collecting and reducing to possession the assets of the estate. These duties usually are completed within-the. year or eighteen months which the law allows for such purpose, unless under the'terms of the will something remains to be done other than to then distribute the estate. ' Such duties are purely executorial. Where, however, in addition to the ordinary offices of administering upon the estate, there' is a provision in the will that after a period fixed the property is to ■ be held in trust, whether by the same or other persons,’ there then devolves upon such persons the duties of the trustee. Another test to apply as to the capacity in which one holds is, upon whom, if the person acting were to die or resign, would the power of appointment of a successor devolve ? In case of a trustee it would, under the statute, devolve upon the Supreme Court. Applying that test here, it is evident that should the trust company resign, the Supreme Court would appoint. its successor, for the duties’ are such that they should be performed by a trustee. Referring again to the will before ns, it will be noted that the' person named is directed, first, to pay the debts, funeral and testa^ mentary expenses; and these acts are to. be performed, in the language of the testator, “ by my executor hereinafter named as soon as may be after my decease.” Although not expressly stated, the duty also devolved Upon such executor to reduce the estate to possession, to . advertise ■ for claims against the estate, and1, within the time prescribed by law, to discharge all purely executorial functions. It was only when this work was completed that the residue of the estate, which thereafter was to be ■ managed for certain purposes, could be determined. “ All the rest, residue and remainder,” is, by the 2d paragraph of the will, given to the same person to hold “upon trust”' for certain of the children of the testator’s sister,■he to pay over so much of the.income thereof as he may [11] think proper for their support, education and maintenance during their minority, and their share of the principal and accumulated interest when they arrived at full age. The trust so created is one of the express trusts allowed by law ; and no argument is needed to Sustain the proposition that a person who is thus required to carry out its clearly defined terms is a trustee. Under this will, therefore, we think double duties were imposed, first, those of executor, and then, after the period of administration as such had passed, those of trustee. Although it is claimed that the part of the decree of September 8, 1900, which directs the estate to be delivered to the Union Trust Company “ as trustee,” was inserted through inadvertence, the fact is that such a provision remains therein, and the decree has never been set aside or appealed from, and for that reason was just as binding upon the learned surrogate as it is upon us. In all the cases, including the one on which most reliance has been placed, that of Johnson v. Lawrence (supra), it will be seen that one of the controlling features in the determination of the question of double commissions has been whether, to use the language of the opinion in that case, there was “ a judicial decree which wholly discharges the executor and leaves him acting and liable only as trustee.” That surely was the condition' here, because the trust company had been discharged as executor and the property had been turned over to it as trustee; and when this proceeding was commenced, it was by the trust company “ as trustee.” We think, then, that it was beyond the power of the learned surrogate to disregard that decree, so long as it remained a valid and binding adjudication upon the question of the status of the trust company. Our conclusion is that the decree so far as appealed from must be reversed, and the decree modified by directing the payment to the accounting trustee of commissions on such portion of the corpus of the estate as is payable to Lawrence Craufurd, with costs to appellant out of such portion; Van Brunt, P. J., Ingraham, Hatch and Laughlin, JJ., concurred. Decree modified as directed in opinion, with costs to appellant out of the portion of the estate payable to Lawrence Craufurd.