Full text
In the Matter of the Judicial Settlement of the Account of Proceedings of Ida L. Angell and The National City Bank of New York, as Executors etc., of Charles A. Angell, Ida L. Angell and The National City Bank of New York, as Executors, etc., of Charles Angell
Decree of the Surrogate’s Court, Kings County, settling the account of executors under a will. The appeal is by the executors, who were also appointed trustees by the will, from so much of the decree as disallows their claim for full commissions.
Decree modified by striking out the provisions to the effect that the appellants are not entitled to commissions in their dual capacities as executors and trustees and by inserting in place thereof provisions to the effect that the account be settled in such form as to allow full commissions. As thus modified, the decree, in so far as appealed from, is affirmed, with costs to the appellants, payable out of the estate, and the matter remitted to the Surrogate’s Court for the entry of a decree accordingly.
The executors are entitled to be discharged as such upon the completion of their executorial duties, which in this case must necessarily be at the time the bequest to the trustees took effect. The will contemplates that the bequest to the trustees takes effect when the residuary estate is completely assembled in a form suitable to constitute a clean-cut trust corpus.
(Matter of Schliemann, 259 N. Y. 497.) Johnston, Adel and Taylor, JJ., concur; Lazansky, P. J., and Hagarty, J., dissent and vote to affirm the decree on the .authority of Johnson v. Lawrence (95 N. Y. 154) and Matter of Schliemann (259 id. 497).