I think the surrogate reached a correct conclusion on the questions involved in this case. (See Matter of Young, 11 Misc. Rep. 680.)
The testator directed his executors and trustees “ to preserve and Keep my said estate together intact.” He authorized them to hire and employ servants and agents to aid them in the management of the estate, and provided that out of 'the net income ninety per cent should be paid his widow and ten per cent should be added to the estate.
After the settlement of the estate and after the trust property had come into the hands of the trustees — which they were thus directed to keep and preserve together intact — the direction as to the net proceeds I think must be deemed to refer to the income of the estate after paying the necessary expenses and disbursements in the management thereof, including taxes accrued after the death of the-testator.
The property was to be kept together intact and the net income was to be derived from that property as so kept together. It was the income received from the whole property, less the necessary expenses in its management and disbursements incurred on account thereof. (See Matter of Jones, 31 Hun, 430; 103 N. Y. 621; Matter of Albertson et al., 113 id. 434-431.)
I do not think that the claim — that the agreement to pay the trustee an annual compensation of $2,400 is invalid as amounting to an assignment of the income of the trust — is sound. If the *289trustee, instead of entering into the agreement in question, had employed a third person to do the same work he agreed to do for $2,400, clearly such an employment would have been authorized by the terms of the will, and the amount paid for such services would have been chargéable against the income under the authorities above cited. The agreement by which $2,400 was to be paid the trustee for services was in no proper sense an assignment of the income of the trust. It was merely a contract relating to the necessary expenses of collecting the income. It provided that, instead of employing some third person in work necessary to be done to realize such income, the trustee might perform the work and receive the compensation therefor.
An agreement in reference to services necessary to be performed in the management of the trust estate, from which the net income was to be derived, was not an assignment of the income. The net income was the annual sum payable after the said services had been settled for.
It was not claimed before the surrogate that the trustee had not performed necessary extra services to the value of $200 a month, but the claim was that the item should be charged in whole or in part to the principal of the estate. The necessity and value should, therefore, be here assumed, as definite proof on the subject might have been given had the contrary been claimed. The only question then for us to decide is whether the surrogate was correct in charging the whole to the income as a disbursement in the management of the estate.
I think the decree should be affirmed, with costs.
Merwin, J., concurred.
Decree modified by deducting from the amount allowed the executor the item of $200 per month allowed him for services, and, as so modified, affirmed, with costs to both parties payable out of the fund.