(dissenting). I cannot agree that the mere fact that Archdeacon Dodshon was named as a trustee after the death of the life tenant, Edward R. Thomas, necessarily, as a matter of law, deprived him of his right to commissions as to that trust. Inasmuch as the four trustees could under the provisions of section 285 of the Surrogate's Court Act (as amd. by Laws of 1923, chap. 649) receive no more than three commissions to be apportioned among them, this seems to me to be largely a controversy among the trustees themselves. It may well be that under the provisions of that section the surrogate could apportion three commissions on the basis of service rendered and perhaps allow to Archdeacon Dodshon less than is allowed to his cotrustees who served for longer periods. It does not follow from that that no commission at all should be allowed. There were still active duties to be performed by the trustees in the settlement of the accounts and the distribution of the corpus of the Edward R. Thomas trust. Indeed, it affirmatively appears that they are still holding a substantial sum of money for the payment of taxes. It also affirmatively appears that the cotrustees utilized the services of Archdeacon Dodshon in the administration of the trust estate after the death of the life tenant, Edward R. Thomas. He was made a trustee by their act, his services were used by them, and he is still functioning as a trustee. I do not think they should be heard to say that he is entitled to nothing.
Finch, J., concurs.
Decrees reversed, with costs to appellants payable out of estate, and the matter remitted to the surrogate for further action in accordance with opinion.