Opinion
December, 1898.
Miller, Peckham Dixon, for executor.
H.C. Sherwood, Rufus L. Scott, Knevals Perry, Howard A. Taylor, special guardian, for respondents.
The question, as I understand it, here presented for decision is as to the commissions to be allowed on the amount of income of the estate which the executor of the will of the decedent now has on hand for disposition. While it is not stated how much of this appertains to each of the funds whose income is disposed of by the first, second and third paragraphs of the twenty-second clause of the will of the testator, I take it that some of it belongs to each. The language in which these paragraphs are couched seems to me to preclude the notion that the commissions upon the income of any of these funds can be paid from any other source than the income of the fund itself or its share of the general income of the estate, in case it has not been separately productive of income. This is so, notwithstanding the capital of the fund may be used in supplying the fixed annual sum given to the beneficiary, but only, as I construe the will, to the extent of the deficiency of the income. The funds disposed of by the paragraphs mentioned constitute trust funds intended by the testator to be set apart and to be distinctively and separately managed by the executor as trustee, and for the turning over of the corpus of the same to itself as trustee, the executor is entitled to commissions thereon for receiving it and paying it out. As to the income, however, of such corpus, which the accountant has in its hands and which it is about to retain or transfer to itself as trustee, I do not think that it is entitled to any commissions thereon as executor. There can be no doubt that the testator never contemplated or intended, in his creating trusts having for their object the collection and application of the income by the trustee exclusively, in its distinctive capacity as such, that the latter should receive commissions upon the same as executor in addition to those to which it will become entitled as trustee. The theory upon which an executor who is also a trustee is allowed commissions in each capacity upon the same fund, is that the testator intended that the capital thereof should pass in succession from the executor to himself as trustee, to be held by him exclusively in the latter character. No such intention can exist in cases of ordinary occurrence like the present, where no such succession is contemplated by the testator, but where the right to receive and disburse the income is solely conferred upon the trustee by the creator of the trust. The decision in the Matter of the Estate of John C. Work, Surr. Dec., 1897, p. 341, reinforces the views which I have expressed and is an authority for my refusal to grant the application of the executor for commissions upon the income in question.
Application denied.