In re the Estate of Chenery

Fowler, S. —The Equitable Trust Company, as general guardian of Fuller Chenery, an infant, has filed its account and [100] asks that the surrogate allow it commissions upon the annual income from the trust fund as if such income were paid out each year for the use of the infant. The guardian w-as directed to accumulate the income for the benefit of its ward. Rone of the income has been/ paid to the infant. The disbursements of income made by the guardian were for personal taxes and counsel fees paid to counsel for the guardian. Commissions must he granted in accordance with the law in force at the time of the accounting. (Naylor v. Gale, 73 Hun, 53 ; Whitehead v. Draper, 132 App. Div. 802.) Section 2753 of the Code of Civil Procedure provides that “ if * * * a guardian is required to receive income and pay over the same, and such * * * guardian pays over said income and renders an annual account to the beneficiary of .all his receipts- and disbursements on account thereof, he -shall be allowed, and may retain, the same commission on the amount so accounted for as he would be allowed upon principal on -a judicial settlement.” In order to entitle a guardian to commissions on the annual income of the trust fund, it mus-t -appear not only that the guardian- has filed an annual account, hut that the income has been paid over for the use of the ward. The second clause of the paragraph of section 2753 from which the above quotation is taken provides that “ if he does not render such annual account, he shall he allowed, upon his judicial settlement, his commissions upon the total income from any money or property then payable to such beneficiary.” In the first clause it is provided that he must not only render an annual account, but also pay over the income; in the secon-dj if he does not render such an account he will be entitled only to commissions upon the entire amount then payable to the beneficiary. I am inclined to think that the words “ -such an account ” refer to the annual account and paying over of annual income provided for in the first clause, -and that unless such annual account is rendered and annual income paid over to or for the use of the beneficiary the guardian- is- not [101] entitled, to. commissions upon the income received each year, but that commissions should be allowed upon the gross income received and ready for payment to the beneficiary at the time he renders his account. The Equitable Trust Company, therefore, will only be allowed commissions upon the entire amount of income received by it from the trust fund for the benefit of the infant. Costs taxed. Decreed accordingly.